exv10w2






Exhibit 10.2




NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL

TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED

SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION AS PART OF THIS

COMPANY’S CONFIDENTIAL TREATMENT REQUEST.




TRACKAGE RIGHTS, SWITCHING AND INTERLINE SETTLEMENT AGREEMENT



entered into by and between



KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V.;



and



FERROCARRIL MEXICANO, S.A. DE C.V.;



dated as of February 9, 2010








 









 








Table of Contents



NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL TREATMENT
REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION AS PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.




	 	 	 	 	 
	Representations
	 	 	1	 
	 
	 	 	 	 
	Clause One. Definitions and Rules of Interpretation
	 	 	4	 
	1.1 Definitions
	 	 	4	 
	1.2 Rules of Interpretation. In this Agreement:
	 	 	13	 
	1.3 Interpretation of KP References and GPS Measurements
	 	 	14	 
	1.4 Exhibits and Appendices
	 	 	15	 
	 
	 	 	 	 
	Clause Two. Settlement
	 	 	16	 
	2.1 Purpose of Agreement
	 	 	16	 
	2.2 Authority of Agreement
	 	 	18	 
	2.3 Future Proceedings
	 	 	18	 
	 
	 	 	 	 
	Clause Three. Termination of Settlement Controversies; Waivers
	 	 	18	 
	3.1 Trackage Rights Definition Controversies
	 	 	18	 
	3.2 Other Settlement Controversies
	 	 	18	 
	3.3 Past Rates Controversies and Excluded Procedures
	 	 	18	 
	3.4 Release
	 	 	19	 
	3.5 Withdrawals; Termination Acts
	 	 	19	 
	3.6 Waiver of Actions and Rights
	 	 	20	 
	3.7 Renunciation of Future Procedures
	 	 	20	 
	3.8 Additional Documents and Acts
	 	 	21	 
	 
	 	 	 	 
	Clause Four. Management of Future Traffic
	 	 	21	 
	4.1 Future Traffic
	 	 	21	 
	4.2 Additional Documents and Acts
	 	 	21	 
	 
	 	 	 	 
	Clause Five. Trackage Rights
	 	 	22	 
	5.1 Ferromex Rates
	 	 	22	 
	5.2 Kansas Rates
	 	 	22	 
	5.3 Acknowledgment
	 	 	22	 
	5.4 Trackage Rights granted to Ferromex at Monterrey
	 	 	22	 
	5.5 Long Trackage Right
	 	 	25	 
	5.6 Trackage Rights to Ferromex; Access to Monterrey By-Pass
	 	 	29	 
	5.7 Trackage Rights to Kansas
	 	 	30	 
	5.8 General Provisions on Rates
	 	 	37	 
	5.9 General Terms and Conditions of the Trackage Rights
	 	 	37	 
	5.10 Maintenance Changes in and/or Additions, Operation and Control
	 	 	39	 
	5.11 Default
	 	 	41	 






 









 






	 	 	 	 	 
	5.12 Certain Clarifications on Trackage Rights not included within the
Scope of this Agreement
	 	 	41	 
	 
	 	 	 	 
	Clause Six. Interline Traffic Services Rates
	 	 	41	 
	6.1 General
	 	 	41	 
	6.2 Complementary Interline Traffic
	 	 	42	 
	6.3 Alternative Interline Traffic
	 	 	42	 
	6.4 [****]
	 	 	42	 
	6.5 General Provisions on Rates
	 	 	42	 
	6.6 Acknowledgment
	 	 	43	 
	6.7 Absence of Participation
	 	 	43	 
	 
	 	 	 	 
	Clause Seven. Switching Services
	 	 	43	 
	7.1 [****]
	 	 	43	 
	7.2 General Provisions on Rates
	 	 	43	 
	7.3 Acknowledgment
	 	 	44	 
	 
	 	 	 	 
	Clause Eight. Points of Interchange
	 	 	44	 
	8.1 General
	 	 	44	 
	8.2 Monterrey
	 	 	45	 
	8.3 Altamira
	 	 	45	 
	8.4 Celaya
	 	 	45	 
	 
	 	 	 	 
	Clause Nine. Maintenance and Operation of Subject Trackage
	 	 	46	 
	9.1 General Rules
	 	 	46	 
	9.2 License
	 	 	46	 
	9.3 Track Connections
	 	 	46	 
	9.4 Alternative Routes
	 	 	46	 
	9.5 Direction and Control of Construction, Maintenance, Repair, and Renewal
	 	 	46	 
	9.6 Direction and Control of Management and Operation
	 	 	47	 
	9.7 Derailment and Accidents Involving Hazardous Materials
	 	 	47	 
	9.8 Additional Rules on Management and Operation of Subject Trackage
	 	 	48	 
	9.9 Training of Subject Trackage User’s Crews
	 	 	49	 
	9.10 Repairs on Dragged Equipment; Removal of Bad Ordered Tractive Equipment
	 	 	50	 
	 
	 	 	 	 
	Clause Ten. Dispatch of Trains; Traffic Control Centers; Non- Discrimination
	 	 	51	 
	10.1 Traffic Control Centers
	 	 	51	 
	10.2 [****]
	 	 	51	 
	10.3 Subject Trackage Use Notice
	 	 	52	 
	10.4 Non- Discrimination
	 	 	52	 
	10.5 Uninterrupted flow of Traffic and other Items
	 	 	52	 
	 
	 	 	 	 
	Clause Eleven. Billing
	 	 	52	 
	11.1 Billing Forms
	 	 	52	 
	11.2 [****]
	 	 	53	 
	11.3 [****]
	 	 	53	 
	11.4 Disputed Bills
	 	 	53	 






 









 






	 	 	 	 	 
	11.5 Inspections and Audits
	 	 	54	 
	11.6 [****]
	 	 	54	 
	11.7 Payment Failure; Additional Remedy
	 	 	54	 
	11.8 Incremental Rates in case of Certain Defaults
	 	 	54	 
	 
	 	 	 	 
	Clause Twelve. Service Standards Committee and Transition Period
	 	 	54	 
	12.1 The Committee
	 	 	54	 
	12.2 Limitations of the Committee
	 	 	55	 
	12.3 Transition Period
	 	 	55	 
	 
	 	 	 	 
	Clause Thirteen. Other Obligations
	 	 	57	 
	13.1 Public Statements
	 	 	57	 
	13.2 Best Efforts
	 	 	57	 
	 
	 	 	 	 
	Clause Fourteen. Term, Termination
	 	 	58	 
	14.1 General Term
	 	 	58	 
	14.2 Events of Termination
	 	 	58	 
	14.3 Dispossession
	 	 	58	 
	14.4 Abandonment
	 	 	58	 
	14.5 Effects of the Termination
	 	 	59	 
	 
	 	 	 	 
	Clause Fifteen. Liability
	 	 	60	 
	15.1 Trackage Rights
	 	 	60	 
	15.2 [****]
	 	 	61	 
	15.3 Litigation and Settlements
	 	 	61	 
	15.4 Labor
	 	 	62	 
	15.5 [****]
	 	 	63	 
	 
	 	 	 	 
	Clause Sixteen. Governmental Approval
	 	 	63	 
	16.1 Responsibilities of Subject Trackage User
	 	 	63	 
	16.2 Cooperation of Subject Trackage Owner
	 	 	63	 
	 
	 	 	 	 
	Clause Seventeen. Miscellaneous
	 	 	63	 
	17.1 Agreement between the Parties, Language
	 	 	63	 
	17.2 Amendments
	 	 	64	 
	17.3 Partial Invalidity
	 	 	64	 
	17.4 Assignment of Rights and Obligations
	 	 	64	 
	17.5 No Damages or Losses from Controversies
	 	 	64	 
	17.6 Taxes
	 	 	64	 
	17.7 Notices.:
	 	 	64	 
	 
	 	 	 	 
	Clause Eighteen. Dispute Resolution
	 	 	65	 
	 
	 	 	 	 
	Clause Nineteen. Jurisdiction and Applicable Law
	 	 	65	 






 









 






	 	 	 

	Exhibit A
	 	Ferromex Concession Title
	 
	 	 
	Exhibit B
	 	Kansas Concession Title
	 
	 	 
	Exhibit C
	 	Settlement Procedures
	 
	 	 
	Exhibit D
	 	Kansas’ complaints before the Ministry of Public Service
	 
	 	 
	Exhibit E
	 	Additional Termination Acts
	 
	 	 
	Exhibit F
	 	Information to be Delivered to Subject Trackage Owner
	 
	 	 
	Exhibit G
	 	Complementary Interlineal Matrix
	 
	 	 
	Appendix 1
	 	Technical Descriptions











 











 





TRACKAGE RIGHTS, SWITCHING AND INTERLINE SETTLEMENT AGREEMENT, DATED AS OF FEBRUARY 9, 2010
(THIS “Agreement”), AMONG:





     FERROCARRIL MEXICANO, S.A. DE C.V. (“Ferromex”), REPRESENTED BY Messrs. ALFREDO CASAR PÉREZ
AND LORENZO REYES RETANA MÁRQUEZ PADILLA; AND




     KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V. (“Kansas”), REPRESENTED BY Mr. JOSÉ GUILLERMO
ZOZAYA DÉLANO;



IN TERMS OF THE FOLLOWING REPRESENTATIONS AND CLAUSES:




REPRESENTATIONS




     I. Ferromex represents that:



     (a) It is a sociedad anónima de capital variable duly incorporated pursuant to the laws of the
UMS, as evidenced by public deed number 51,923, dated June 11, 1997, granted before Mr. Miguel
Alessio Robles Landa, Notary Public No. 19 of the Federal District, registered before the Public
Registry of Commerce of Mexico City under commercial file number 226,005.



     (b) On June 22, 1997, the Ministry granted in favor of Ferromex (formerly, Ferrocarril
Pacífico-Norte, S.A. de C.V.) a concession title for the operation and exploitation of the
Northern-Pacific Railway, including for the rendering of railway services thereon (as amended and
including all exhibits, hereinafter the “Ferromex Concession Title”). A copy of the Ferromex
Concession Title, without exhibits, is attached hereto as Exhibit A.



     (c) The Ferromex Concession Title has a term of 50 (fifty) years counted as from February 14,
1998.



     (d) It has knowledge of the terms of each and every act and ruling of any nature related to
the Settlement Procedures, including, without limitation, the relevant rulings issued in connection
therewith as of the date hereof.



     (e) Its legal representatives have the necessary authority to execute this Agreement, as
evidenced by public deeds numbers 51,385, dated February 20, 1998, and and 55,809, dated July 18,
2002, both of them granted before Mr. Luis de Angoitia Becerra, Notary Public No. 230 of the
Federal District, which authority has not been revoked or modified in any manner whatsoever as of
the date hereof.



     II. Kansas represents that:



     (a) It is a sociedad anónima de capital variable duly incorporated under the laws of the UMS,
as evidenced by public deed number 50,413, dated November 22, 1996, granted before Mr. Miguel
Alessio Robles Landa, Public Notary No. 19 of the Federal District, registered before the Public
Registry of Commerce of Monterrey, Nuevo León under Item 29, Volume 429, Book 3, Second Auxiliary,
Commerce Section.



 









 





     (b) On December 2, 1996, the Ministry granted in favor of Kansas (formerly, Ferrocarril del
Noreste, S.A. de C.V.) a concession title for the operation and exploitation of the Northeast
Railway, including for the rendering of railway services thereon (as amended and including all
exhibits, hereinafter the “Kansas Concession Title”). A copy of the Kansas Concession Title,
without exhibits, is attached hereto as Exhibit B.



     (c) The Kansas Concession Title has a term of 50 (fifty) years counted as of July 31, 1997.



     (d) It has knowledge of the terms of each and every act and ruling of any nature related to
the Settlement Procedures, including, without limitation, the relevant rulings issued in connection
therewith as of the date hereof.



     (e) Its legal representative has the necessary authority to execute this Agreement, as
evidenced by public deed number 142,188, dated January 29, 2010, granted before Mr. Cecilio
González Márquez, Notary Public No. 151, of the Federal District, which authority has not been
revoked or modified in any manner whatsoever as of the date hereof.



     III. Ferromex and Kansas jointly represent that:



     (a) In terms of the Railroad Service Law and its Regulations, as well as of their respective
Concession Titles, they are required to grant each other: (i) certain trackage and switching rights
pursuant to the terms and conditions established in Exhibits Nine, Ten and Eleven of their
respective Concession Titles; and (ii) interconnection and terminal services.



     (b) Kansas and Ferromex have had and continue to have several differences, disputes and/or
controversies with respect to the nature, scope, terms, conditions and/or rates applicable both to
the trackage and switching rights, as well as to interconnection and terminal services.



     (c) Kansas and Ferromex have been, and continue to be, parties in several disputes, procedures
and/or controversies before judicial and administrative authorities, regarding the nature, scope,
terms, conditions and/or rates applicable both to trackage and switching rights, as well as to
interconnection and terminal services.



     (d) It is their intention, through the execution of this Agreement, to:




	 	(i)	 	completely, definitively and irrevocably terminate the Settlement Controversies
(as defined below);
	 
	 	(ii)	 	terminate any and all rights, obligations, actions, differences, disputes
and/or lawsuits which they have or may have in a future against the other Party in
connection with the Settlement Controversies mentioned in paragraph (i) above;
	 
	 	(iii)	 	definitively terminate and conclude all the Settlement Procedures which relate
to the Settlement Controversies; and
	 
	 	(iv)	 	agree on long-term terms and conditions regarding the issues described in this
Agreement, in order to avoid future controversies among them.




2









 











     (e) A list of judicial and administrative procedures to which Kansas and/or Ferromex are a
party and which relate to the Settlement Controversies (the “Settlement Procedures”), is attached
hereto as Exhibit C.



     (f) Kansas and Ferromex have other disputes, controversies and legal procedures among them in
addition to the Settlement Controversies and the Settlement Procedures. These additional disputes,
controversies and legal proceedings are not settled by means of this Agreement and they include
(but are not limited to) the Excluded Procedures referred to below.



     IV. Each of Ferromex and Kansas represents, through its respective representative, that:



     (a) This Agreement and the other acts derived herefrom, entered or to be entered by it,
constitute, or after their execution shall constitute, as the case may be, valid and binding
obligations of such Party, in compliance with the applicable legal framework, enforceable against
it in accordance with its terms.



     (b) It has not assigned in any way nor granted in guaranty any of the rights that correspond
or may correspond to it with respect to the Settlement Controversies.



     (c) It has not entered into agreements or contracts with any person that may derive in a
breach of this Agreement or the acts derived herefrom.



     (d) It has no knowledge of any litigation, whether judicial or extrajudicial, administrative
or any other procedures (nor threat or warning of any of the foregoing) that prevents or may
prevent it from: (i) entering into this Agreement; (ii) entering into the other acts derived
herefrom; and/or (iii) complying with the obligations derived from (i) and (ii) above.



     (e) It has no knowledge of any person (particularly any Affiliate) that has or may have,
directly or indirectly, any interest or right in the Settlement Controversies.



     (f) The execution of this Agreement and of the other acts derived herefrom, as well as the
fulfillment of the obligations derived from the former and latter, will not be contrary to, nor
will it result in a violation or breach of agreements or instruments to which it is a party or by
means of which it is bound, of the Applicable Framework, as defined in Section 1.1 of this
Agreement, including of any law, regulation, decree, official writ, agreement or ruling of any
Governmental Authority.



     (g) The Parties have submitted to one another a copy of their respective written programs for
certifying the qualifications of locomotive engineers (maquinistas) and conductors needed for the
trackage rights on Subject Trackage per the Railroad Service Law, its Regulations and their
respective internal regulations, and each Party’s written program has been approved by the other
Party. Accordingly, the qualification of locomotive engineers and conductors shall not impede or
prevent the Parties from making use of the trackage rights set forth in this Agreement.



     NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree as follows:



3









 





CLAUSES




     Clause
One. Definitions and Rules of Interpretation.



     1.1 Definitions. For the purposes of this Agreement only, capitalized terms used and
not otherwise defined in this Agreement shall have the meanings ascribed to such terms in this
Section 1.1. With respect to any such term that is defined by reference to another agreement or
document for purposes hereof, such term shall continue to have the definition in effect as of the
date hereof, notwithstanding any termination, expiration or modification of such other agreement or
document.



     “AAR” means the Association of American Railroads.



     “Affiliates” means entities owned or controlled by, or under common control with, or whose
ultimate parent company is the same as that of, another, named company.



     “Agreement” shall have the meaning ascribed to such term in the heading of this Agreement.



     “Aguascalientes Access Zone” means the trackage that is identified in Appendix 1
hereof.



     “Altamira Facilities” means each of the facilities that are identified in Appendix 1
hereof.



     “Alternative Interline Traffic” shall have the meaning ascribed to such term in Section
6.3(a).



     “Applicable Framework” means the norms, rules, regulations and/or standards set forth in or
issued by: (i) the Railroad Service Law, (ii) the Regulations, (iii) the Ministry, (iv) the
Concession Titles, (v) any other Governmental Authority (including with respect to the preservation
of historical sites), (vi) any other law, regulation or rule applicable to the Parties, including
normas mexicanas and normas oficiales mexicanas, and (vii) the AAR (only to the extent not contrary
to Mexican law); in each case as they refer to the maintenance of trackage, the maintenance of the
assets granted in concession to Ferromex and Kansas under their respective Concession Titles and/or
the performance of railroad services in general.



     “Articulated Car” means Dragged Equipment comprised of multiple units coupled permanently or
semi-permanently together in a manner that individual units cannot, without modification, be
operated separately because they share common trucks and wheels or other mechanical or pneumatic
equipment, including, for example, articulated double-stack intermodal Cars.



     “Bajío Area” means the States of Jalisco, Querétaro, Hidalgo, Guanajuato and the north of the
State of Michoacán.



     “Bulktainer” means a type of intermodal container, usually comprised in part of a tank vessel,
designed to contain bulk liquids, chemicals, gases, meltable solids, slurries, emulsions,



4









 




fluidizable solids or other flowable, fungible commodities with a metal frame that allows
transport of such materials in the same container on both railcar or ship and by over the road
truck. A Bulktainer is a type of container that rides on an intermodal Car.




     “Car” means Dragged Equipment employed in any form of freight transportation, including
articulated, intermodal, articulated-intermodal and any other type of Articulated Car.



     “Car-Kilometer” means each kilometer travelled by each Party’s unit of Railroad Equipment
(loaded or unloaded) over the Trackage of the other Party; provided that: (i) each kilometer
travelled by a unit of Tractive Equipment over the Trackage of the other Party shall count as 2
(two) Car-Kilometers; (ii) each Car-Kilometer traveled by an Articulated Car shall count as 1 (one)
Car-Kilometer per platform or well comprising such Articulated Car; and (iii) each Car-Kilometer
traveled by an Articulated Car servicing automotive traffic (Automax) shall count as 2 (two)
Car-Kilometers per unit comprising such Articulated Car.



     “Committee” shall have the meaning ascribed to such term in paragraph (a) of Clause Twelve.



     “Complementary Interline Traffic” shall have the meaning ascribed to such term in Section
6.2(a).



     “Concession Title” means the Kansas Concession Title and/or the Ferromex Concession Title, as
applicable.



     “Dispute” means a difference, breach or any other form of controversy, between the Parties as
to the meaning, compliance, validity, enforcement, interpretation, scope or application of the
terms or provisions of this Agreement.



     “Dispute Notice” shall have the meaning ascribed to such term in paragraph (a) of Clause 18.



     “Dollars” means the legal currency of the United States of America.



     “Doña Cecilia” means Kansas’ facility located at Line L KP 673+800, which is further
identified in Appendix 1 hereof.



     “Dragged Equipment” means Railroad Equipment that lacks self-traction, including Cars.



     “Environmental Claim” means the direct costs of any cleanup, response, removal, remediation,
natural resource damage, closure and/or post closure required by any environmental conditions
affecting the air, soil, surface waters, ground waters, streams, sediments and similar
environmental conditions caused by, resulting from, arising out of, or occurring in connection with
this Agreement.



     “Environmental Laws” means all federal, state and municipal laws, official Mexican standards,
statutes, ordinances, regulations, criteria, guidelines and rules of civil law now in effect, and,
in each case, as amended, and any judicial or administrative interpretation thereof,



5









 




including any judicial or administrative order, consent, decree or judgment relating to the
regulation and protection of human health, safety, the environment and natural resources, including
air emissions, surface water, groundwater, wetlands, land, surface or subsurface strata.
Environmental Laws shall include laws and regulations relating to emissions, discharges, releases
or threatened releases of Hazardous Materials or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials.
Environmental Laws shall also include the following Mexican laws insofar as they regulate or relate
to environmental or public health matters: the General Law for Ecological Equilibrium and the
Protection of the Environment (Ley General de Equilibrio Ecológico y Protección al Ambiente), the
General Law for the Prevention and Integral Handling of Waste (Ley General para la Prevención y
Gestión Integral de los Residuos), the General Health Law (Ley General de Salud), Title Nine of the
Federal Labor Law (Titulo Nueve de Ley Federal del Trabajo), the General Law for Sustainable
Forestry Development (Ley General de Desarrollo Forestal Sustentable), the National Waters Law (Ley
de Aguas Nacionales), the General Law on National Property (Ley General de Bienes Nacionales), the
Human Settlements General Law (Ley General de Asentamientos Humanos), the Federal Regulations on
Occupational Safety, Hygiene and Environment (Reglamento Federal de Seguridad, Higiene y Medio
Ambiente de Trabajo), the Federal Criminal Code (Código Penal Federal) and their state and local
counterparts or equivalents.




     “Equipment” shall have the meaning ascribed to such term in Section 5.9(b).



     “Excluded Procedures” shall mean the following disputes, lawsuits, remedies, appeals and/or
disagreements among the Parties:




	 	(i)	 	the administrative trial against resolution number 120.-347/2002, dated March
13, 2002, issued by the then Dirección General de Tarifas, Transporte Ferroviario y
Multimodal of the Ministry, which is currently on the High Chambers of the Federal
Court of Fiscal and Administrative Justice under docket
8116/02-17-09-2/1658/08-PL-07-4;
	 
	 	(ii)	 	the Past Rate Controversies;
	 
	 	(iii)	 	any and all pending appeals, trials and revisions before the High Chambers of
the Federal Court of Fiscal and Administrative Justice against resolution number
4.3.-1193/2008, dated June 23, 2008, issued by the then Dirección General de Tarifas,
Transporte Ferroviario y Multimodal of the Ministry;
	 
	 	(iv)	 	the complaints filed by Kansas before the Ministry of Public Service
(Secretaría de la Función Publica) identified in Exhibit E hereto;
	 
	 	(v)	 	the administrative trial against resolution number 4.3.-1193/2008, dated July
23, 2008, issued by the then Dirección General de Tarifas, Transporte Ferroviario y
Multimodal of the Ministry, which is currently on the 9th Regional Chamber of the
Federal Court of Fiscal and Administrative Justice under docket 23531/08-17-09-1 with
regard to the scope of Trackage Right N-5 (Ramos Arizpe – Encantada);




6









 












	 	(vi)	 	Article 47, determination of tariff base; and
	 
	 	(vii)	 	any other procedures among the Parties or among the Parties and any third
party or a Governmental Authority which is not expressly included in the definition of
Settlement Procedures.





     “Ferromex” has the meaning ascribed thereto in the preamble.



     “Ferromex Concession Title” shall have the meaning ascribed thereto in Representation I.



     “Ferromex Parties” means Ferromex and its respective Affiliates (current, past and/or future),
and their respective officers, directors, partners, shareholders, members, employees, agents,
insurers, counsel and other representatives (current, past and/or future), and each of their
respective successors and assigns.



     “Ferromex Trackage” means the trackage granted in concession to Ferromex under the Ferromex
Concession Title.



     “Ferrosur” means Ferrosur, S.A. de C.V.



     “Governmental Authority” means any national, state, county, city, town, village, municipal or
other de jure or de facto government entity, department, office, commission, board, bureau, agency,
authority or instrumentality of the UMS or any political subdivision thereof, and any person
exercising executive, legislative, judicial, regulatory or administrative functions of or
pertaining to any of the foregoing entities, including all commissions, boards, bureaus, courts,
arbitrators and arbitration panels of any of the foregoing entities, and any authority or other
person controlled directly or indirectly by any of the foregoing.



     “GPS” means the Global Positioning System, a space-based radionavigation system that provides
reliable positioning anywhere in the world.



     “Guadalajara Access Zone” means: (i) the Guadalajara Terminal (as identified in Appendix
1); (ii) any industry and/or User currently or in the future located within the area comprised
between: (a) Line T KP 1763+960 and Line T KP 1740+346; (b) Line I KP 304+708 and Line I KP
227+000; (c) the entire Line IZ that connects to track 02-301 (Former Stem Line) with a length of
3,500 meters; and (d) the entire Former Stem Line, in the section comprised between its
intersections with Line I; and (iii) any industry and/or User connected to preceding items (i) or
(ii), whether directly and/or through auxiliary or secondary tracks, siding, escape tracks, spurs,
yard tracks, and/or cortavías. Items (i) and (ii) of this definition are further identified in
Appendix 1 hereof.



     “Guerrero Facility” means the industrial plant located on the Former Line F KP 2+275.90 in the
Monterrey Access Zone, and which is further identified in Appendix 1 hereof.



     “Hazardous Materials” means and includes any and all radioactive materials, radon and
asbestos, heavy metals, organic compounds known as polychlorinated biphenyls, chemicals known to
cause cancer or reproductive toxicity, pollutants, contaminants, hazardous wastes,



7









 




toxic substances, toxic pollutants, petroleum substances or petroleum products, pesticides,
and any and all other substances or materials defined as, or included in the definition of
“hazardous wastes”, “hazardous materials”, “hazardous substances” , “toxic substances” or “toxic
pollutants” under, or for the purposes of, any Environmental Laws.




     “Interchange” means the action by means of which one the Parties receives or delivers Cars to
or from the other Party.



     “Interchange Rules” means the most recently effective edition of the Field Manual of the
Interchange Rules adopted by the AAR governing the interchange of Cars and equipment between
railroads.



     “Interline Traffic” means the interconnection service consisting in the Interchange and
transportation of Dragged Equipment, wherein one Party requests the other Party to provide public
railway freight transportation services to a User.



     “Kansas” shall have the meaning ascribed thereto in the preamble.



     “Kansas Concession Title” shall have the meaning ascribed thereto in Representation II.



     “Kansas Parties” means Kansas and its respective Affiliates (current, past and/or future), and
their respective officers, directors, partners, shareholders, members, employees, agents, insurers,
counsel and other representatives (current, past and/or future), and each of their respective
successors and assigns.



     “Kansas Trackage” means the trackage granted in concession to Kansas under the Kansas
Concession Title.



     “KP” means: (i) each of the kilometer signs currently existing along the trackage comprising
the Mexican Railway System; and/or (ii) in case no kilometer signs exist for a given location, the
KP means a measurement of the kilometers and meters of said location measured as from the nearest
existing sign.



     “Local Traffic” means traffic which is picked up or delivered to an intermediate point on a
designated line.



     “Long Trackage Right” shall have the meaning ascribed thereto in Section 5.5(b).



     “Loss or Damage” means, without limitation, all claims, liability, cost, and expense of every
nature, including amounts paid under any state or federal compensation law incident to loss or
destruction of or damage to property and injury to and death of persons arising from the operation
by the Parties on the Subject Trackage.



     “Matrix” shall have the meaning ascribed to such term in Section 6.2(a).



     “Mexico” means the United Mexican States.



     “Mexico Valley Access Zone” means the trackage identified in Appendix 1.



8









 





     “Ministry” means the Secretaría de Comunicaciones y Transportes of the federal Government of
the UMS.



     “Monterrey Access Zone” means: (i) the Monterrey Terminal; (ii) any industry and/or User
currently or in the future located within the area comprised between: (a) Line B KP 1023+200 and
Line B KP 1029+000; (b) Line M KP 518 +000 and Line M KP 523+000; (c) Line M KP 525+400 and Line M
KP 528+000; (d) Line F KP 0+000 and Line F KP 19+000; (e) the entire Line BI; (f) the entire Line
BMA; (g) the entire Former Line F; and (h) the entire Former Line M; (iii) any industry and/or User
connected to preceding items (i) or (ii), whether directly and/or through auxiliary or secondary
tracks, siding, escape tracks, spurs, yard tracks, and/or cortavías, as further identified in
Appendix 1.



     “Monterrey Adaptation” shall have the meaning ascribed to such term in Section 8.2(a).



     “Monterrey By-Pass” means a by-pass around congested portions of the City of Monterrey, which
Ferromex might build at its own cost and expense (without having an obligation to do so), and that
it has rights in its concession to build, between Line F KP 43+842 (= Line MF KP 17+755) and Line F
KP 20+700 and between Line BF KP 39+658 (= Line B KP 1038+323) and Line BF KP 35+876 (= Line M KP
535+811) , as further described in Appendix 1.



     “New Altamira Facility” shall have the meaning ascribed to such term in Section 5.7(d).



     “New Ternium Facility” shall have the meaning ascribed to such term in Section 5.4(f).



     “Nissan Facility” means the industrial facility located on the Line A KP 575+650 in the
Aguascalientes Access Zone, and which is further identified in Appendix 1 hereof.



     “Parties” means Kansas and Ferromex.



     “Party” means either Kansas or Ferromex, respectively.



     “Party of the First Part” shall have the meaning ascribed to such term in Section 11.1(c).



     “Party of the Second Part” shall have the meaning ascribed to such term in Section 11.1(c).



     “Past Rates Controversies” means the disputes, claims and lawsuits that form part of the
Excluded Procedures and that relate to the determination of rates for mandatory trackage and/or
switching rights and for interconnection and/or terminal services, accrued prior to the date of
this Agreement or that may result from a cause, act, action, omission and/or procedure of any
species occurring prior to the execution date of this Agreement, and the disputes among the Parties
regarding amounts payable to one another for trackage rights, interline services and switching
services, provided for under resolutions number 4.3.-1011/2008 dated June 26, 2008, and
4.3.-1200/2008 dated July 23, 2008, and 120.-849/2002, which are currently being disputed by both
Parties through:



9









 






	 	(i)	 	the annulment trial number 25707/08-17-03-08, before the Third Chamber of the
Federal Court of Fiscal and Administrative Justice and the annulment trial number
25659/08-17-01-3, before the First Chamber of the Federal Court of Fiscal and
Administrative Justice, which have been accumulated under docket 25659/08-17-01-3,
before the First Chamber of the Federal Court of Fiscal and Administrative Justice; and
	 
	 	(ii)	 	the annulment trial 18117/02-17-04-8/ac1/1061/03-PL-07-04, before the High
Chambers of the Federal Court of Fiscal and Administrative Justice, which has been
appealed and resolved by the Supreme Court of Justice under docket 127/2006.





     For the avoidance of doubt, and as provided in this Agreement, the Parties are settling by
means of this Agreement the rates that correspond for mandatory trackage and/or switching rights
and for interconnection and/or terminal services starting from January 1, 2009, onwards; but not
the applicable rates before January 1, 2009, or the amounts owed by the Parties to one another
before the execution of this Agreement.



     “Pesos” means the legal currency of the UMS.



     “Pesquería Facility” means the facility that may be constructed in the vicinity of the Kansas’
Pesquería station on Line F, including if constructed by an Affiliate of Ternium.



     “Railroad Equipment” means Dragged Equipment and Tractive Equipment.



     “Railroad Service Law” means the Mexican Railroad Service Law (Ley Reglamentaria del Servicio
Ferroviario).



     “Regulations” means the Mexican Railway Service Regulations (Reglamento del Servicio
Ferroviario).



     “Relevant Personnel” means, in connection with any grant of Trackage Rights, all personnel
(whether unionized or not) and officers of the Subject Trackage Owner pertaining to the Subject
Trackage, as well as the corresponding labor unions.



     “Response Action” shall have the meaning ascribed to such term in Section 9.7(d).



     “Rule 11” means Rule 11 of the General Mandatory Rules (Interline Settlement System) of the
Railway Accounting Rules published by the AAR.



     “Settlement Procedures” shall have the meaning ascribed thereto in Representation III(c) and
which are listed in Exhibit C hereto.



     “Settlement Controversies” means any controversy, divergence, disagreement, discrepancy,
claim, request, pretension, action, suit, request for arbitration, dispute, accusation, remedy,
obligation, agreement, contract, promise, debt, engagement, lien, ruling, payment obligation,
interest, invoice, damage, lost profit, expense (including expenses and fees and other counsel
charges), enforcement order and any other obligation or responsibility of any class or



10









 




nature, direct or indirect, either derived from law, agreement or otherwise, past, present or
future, contingent or not, known or not, claimed or not, or threat of any of the foregoing that any
of the Parties may receive or has received from the other Party, that arises from, is related by
any manner directly or indirectly with, or by reason of:





	 	(i)	 	the definition, terms and conditions and/or scope of the mandatory trackage
and/or switching rights N-1 (Topo Grande – Patio Monterrey – Cerro de la Silla) and any
other dispute affecting the trackage rights N-1, DPL-1 (Mariscala – Guadalajara), PN-10
(Árbol Grande – Altamira), DPL-2 (Viborillas – Encantada), and N-5 (Ramos Arizpe –
Encantada) in connection with DPL-2 as referred to in Appendix 1 hereto (the
“Trackage Rights Definition Controversies”), which legal proceedings are identified in
Exhibit C hereof;
	 
	 	(ii)	 	the disputes, claims and lawsuits that relate to the determination of rates for
mandatory trackage and/or switching rights and for interconnection and/or terminal
services, that will be applicable from January 1, 2009 onwards;
	 
	 	(iii)	 	the litigation involving amendment of Ferromex’s Concession Title, identified
in Exhibit C hereof; and
	 
	 	(iv)	 	the disputes, claims and lawsuits that relate solely to Court Cost (costas
judiciales) associated with present or future proceedings relating to the Settlement
Controversies, including: (a) ordinary mercantile trial under docket 623/2001 before
the Third Civil Judge of Mexico City; and (b) ordinary mercantile trial under docket
293/2004 before the 45th Civil Judge of Mexico City.





     For the avoidance of doubt, the definition of Settlement Controversies does not include any
controversy, divergence, disagreement, discrepancy, claim, request, pretension, action, suit,
request for arbitration, dispute, accusation, remedy, obligation, agreement, contract, promise,
debt, engagement, lien, ruling, payment obligation, interest, invoice, damage, lost profit, expense
(including expenses and fees and other counsel charges), enforcement order and any other obligation
or responsibility of any class or nature, direct or indirect, related to the Excluded Procedures.



     “Sole Employees” and “Sole Property” means, for purposes of trackage rights granted under this
Agreement, one or more officers, agents, employees, contractors or Railroad Equipment, while
engaged in, en route to or from, or otherwise on duty incident to performing service for the
benefit of one Party. Pilots furnished by Subject Trackage Owner to assist in training or
qualifying the Subject Trackage User’s crews to operate on the Subject Trackage or to recrew
Subject Trackage User’s trains and to operate them temporarily due to unavailability of Subject
Trackage User’s crews operating Railroad Equipment of Subject Trackage User shall be considered the
Sole Employees of Subject Trackage User while engaged in such operations. All such officers,
agents, employees, contractors, or Railroad Equipment, while engaged in, en route to or from, or
otherwise on duty incident to repairing Railroad Equipment, re-railing, or clearing wrecks or
derailments or engaged in the repair or renewal of the Subject Property subsequent to any such
wreck or derailment shall, for the purpose of this Agreement, be deemed the Sole Employees and/or
Sole Property of the Party bearing the cost of repair or of the other Loss or



11









 




Damage of the wreck or derailment. Such officers, agents, employees, contractors or Equipment
while en route from performing such repair, re-railing, or clearing of wrecks or derailments or
renewing the Subject Property to perform another type of service, shall not be deemed to be
performing service incident to the instant repair, re-railing or clearing of a wreck or derailment.




     “Subject Employees” means, for purposes of trackage rights granted under this Agreement, one
or more officers, agents, employees or contractors of Subject Trackage Owner while actually engaged
in maintaining, repairing, constructing, renewing, removing, inspecting, or operating the Subject
Property or in making changes in and/or additions thereto for the benefit of all of the Parties
hereto, or while preparing to engage in, en route to or from, or otherwise on duty incident to
performing such service. Officers, agents, employees or contractors of Subject Trackage Owner
shall not be deemed “Subject Employees” while en route from the performance of such work as
hereinbefore described to perform service for the benefit of less than all of the Parties hereto.



     “Subject Property” means, for purposes of trackage rights granted under this Agreement, the
Subject Trackage and all appurtenances thereto and all Equipment while engaged in maintaining,
repairing, constructing, renewing, removing or inspecting the Subject Trackage or in making changes
in and/or additions thereto for the benefit of all the parties hereto, or while being prepared to
engage in, en route to or from, or otherwise incident to performing such service. Such Equipment
shall not be deemed “Subject Property” while en route from the performance of such work as
hereinbefore described to perform service for the benefit of less than all of the Parties hereto.



     “Subject Trackage” means, for purposes of trackage rights granted under this Agreement,
trackage of the Parties described in Sections 5.4, 5.5, 5.6, 5.7, 8.2 and 9.4 of this Agreement to
which the Subject Trackage User is granted a right, by the Parties’ Concession Titles or by the
Subject Trackage Owner, of use or access, including: (i) the necessary right of way, sidings,
secondary tracks, double tracks, industrial tracks, connections, spurs, yard tracks, crossings, and
other appurtenances and support facilities; and (ii) all changes in and additions thereto existing
now or in the future as are required or desirable for the operation of the trains of the Parties.



     “Subject Trackage Owner” means, for purposes of trackage rights granted under this Agreement,
the Party who is granting trackage rights under this Agreement.



     “Subject Trackage User” means, for purposes of trackage rights granted under this Agreement,
the Party granted the right to use or access the Subject Trackage.



     “Termination Acts” shall have the meaning ascribed thereto in Section 3.5(f).



     “Termination Documents” means, jointly (i) this Agreement, (ii) the waivers and withdrawals
referred to in Clause Three hereof, and (iii) any other documents executed or to be executed by the
Parties in connection with the termination of the Settlement Controversies.



     “Ternium” means Ternium, S.A., a company incorporated under the laws of the Grand Duchy of
Luxembourg, with investments in flat and long steel manufacturing and distribution, including any
successors thereof.



12









 





NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A 

CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN
OMITTED FROM THIS EXHIBIT AND HAVE BEEN 

FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS 

PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.




     “Trackage Rights Definition Controversies” shall have the meaning ascribed thereto in
paragraph (i) of the definition of Settlement Controversies.



     “Tractive Equipment” means a self-propelled railroad vehicle whether employed or not in the
movement of the Dragged Equipment.



     “Train” means Tractive Equipment, whether coupled or not to Dragged Equipment, displaying a
marker. The marker can be an end of train device or a light displayed on the rear of the last
locomotive in a multiple locomotive consist or on a locomotive at the rear end of a Train (for
example, a helper or distributive power locomotive). [****]



     “Transition Period” shall have the meaning ascribed to such term under Section 12.3 (a).



     “TUCE Rates” means the rates that are registered before the Ministry pursuant to Articles 46
of the Railroad Service Law and 170 of the Regulations as Unique Freight and Express Rate.



     “UMS” means the United Mexican States.



     “User” means the individual or legal entity that enters into a contract with one of the
Parties for the rendering of the public railway freight transportation service under the terms of a
bill of lading or under another type of agreement for the provision of such public service.



     1.2 Rules of Interpretation. In this Agreement:




	 	(i)	 	Clause, Section and Paragraph headings are for convenience only and shall not
affect the interpretation of this Agreement;
	 
	 	(ii)	 	references to any document, instrument or agreement, including this Agreement,
shall include: (x) all exhibits, annexes, schedules, appendices or other attachments
hereto or thereto; (y) all documents, instruments or agreements issued or executed in
replacement hereof or thereof; and (z) any amendment, restatement, modification,
supplement or replacement hereto or thereto, as the case may be;
	 
	 	(iii)	 	the words “include,” “includes” and “including” are not limiting;
	 
	 	(iv)	 	references to any person shall include such person’s successors and permitted
assigns (and in the case of any Governmental Authority, any Person succeeding to such
Governmental Authority’s functions and capacities);
	 
	 	(v)	 	the words “hereof,” “herein” and “hereunder” and words of similar import shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement;






13











 






	 	(vi)	 	references to “days” shall mean calendar days and references to
“business day” shall mean a Monday, Tuesday, Wednesday, Thursday or Friday which is
not a legal holiday in Mexico City for the government of the UMS;
	 
	 	(vii)	 	both Parties shall be understood as having had equal responsibility for the
language of this Agreement such that no rule of contractual construction that holds an
alleged ambiguity of language in an agreement against the drafter of the agreement
shall be applied in the construction of this Agreement; and
	 
	 	(viii)	 	the singular includes the plural and the plural includes the singular.





     1.3 Interpretation of KP References and GPS Measurements.



     (a) In this Agreement and in Appendix 1 hereof, the numbers following the defined term
of a given line and the defined term “KP” indicate a point located at the designated kilometers and
meters of the corresponding line. For example, a reference to Line B KP 100+090; means a point
located at approximately the 90th meter, of the 100th kilometer of the Line B.



     (b) Ferromex and Kansas hereby agree to conduct a process to determine the precise locations
of the KP points used in this Agreement. To such end, Kansas and Ferromex agree to the following:




	 	(i)	 	During a period of 120 (one hundred and twenty) days following the execution of
this Agreement, Kansas (directly or through one or more subcontractors of Kansas) will
take GPS coordinates of the KP locations referred to in this Agreement;
	 
	 	(ii)	 	During that period of time, Ferromex and its Affiliates shall provide Kansas’
personnel and advisors all reasonable access and assistance for such persons to be able
to take the GPS coordinates referred above. Personnel and advisors to Ferromex may be
present during the taking of the GPS coordinates if they wish to do so; in the
understanding that Kansas shall inform Ferromex with at least 3 (three) business days
in advance of taking any of such GPS coordinates so that Ferromex is able to determine
whether it wishes to be present during the taking of such coordinates and/or to
coordinate assistance to Kansas personnel and its contractors;
	 
	 	(iii)	 	Within 30 (thirty) business days following the measurement period referred in
paragraph (i) above, Kansas will submit to Ferromex a document (which may be an
electronic file) indicating the GPS coordinates that correspond to each of the KP
points;
	 
	 	(iv)	 	After receipt of said document, Ferromex will have 30 (thirty) business days to
make any objections to the GPS coordinates, in the understanding that Ferromex may only
object to individual measurements;




14









 






	 	(v)	 	Any GPS coordinates not objected by Ferromex in writing to Kansas within the 30
(thirty) business days period referred to in (iv) above, shall be deemed as accepted by
Ferromex and thereupon such GPS coordinates shall have the effect mentioned in
paragraph (c) of this Section 1.3;
	 
	 	(vi)	 	Any GPS coordinates objected by Ferromex in writing, will be submitted to the
Committee referred to in Clause Twelve hereof. The Committee shall convene to address
the matter within 20 (twenty) business days after the objections from Ferromex were
delivered to Kansas;
	 
	 	(vii)	 	If, within 20 (twenty) business days after the objections from Ferromex were
delivered to Kansas, the Committee: (a) does not meet; or (b) having met, fails to
issue a unanimous resolution setting forth the applicable GPS coordinates, either Party
may submit the matter to URS Corporation (including to one of their Affiliates
operating in the UMS, or any other entity that the Parties agree in writing), whose
resolution on the subject will be conclusive and binding, and the GPS coordinates
accepted in said resolution shall have the effect mentioned in paragraph (c) of this
Section 1.3; and
	 
	 	(viii)	 	A unanimous resolution from the Committee shall be deemed as accepted by Ferromex and
Kansas, and upon said resolution the GPS coordinates accepted by the Committee shall
have the effect mentioned in paragraph (c) of this Section 1.3.





     (c) The GPS coordinates resulting from the process described above shall, once they have
become conclusive and final in accordance with said process, become the conclusive geographic
indication of the KP locations referred to in this agreement, including if the KP signs do not
currently exist or are thereafter altered, destroyed or otherwise become not available.



     (d) The costs of taking the GPS coordinates will be split equally between Ferromex and Kansas.



     1.4 Exhibits and Appendices. The Exhibits and Appendices listed below are an integral
part of this Agreement:



	 	 	 	 	 

	 

	 	Exhibit A
	 	Ferromex Concession Title
	 
	 	 	 	 
	 

	 	Exhibit B
	 	Kansas Concession Title
	 
	 	 	 	 
	 

	 	Exhibit C
	 	Settlement Procedures
	 
	 	 	 	 
	 

	 	Exhibit D
	 	Kansas’ complaints before the Ministry of Public Service






15









 






	 	 	 	 	 

	 

	 	Exhibit E
	 	Additional Termination Acts
	 
	 	 	 	 
	 

	 	Exhibit F
	 	Information to be Delivered to Subject Trackage Owner
	 
	 	 	 	 
	 

	 	Exhibit G
	 	Complementary Interlineal Matrix
	 
	 	 	 	 
	Appendix 1	 	Technical Descriptions






     Clause Two. Settlement.



     2.1 Purpose of Agreement.



     (a) The Parties enter into this Agreement before a notary public, in order to terminate in a
definitive and irrevocable manner the Settlement Controversies, as well as any other issue or
dispute directly related to such Settlement Controversies.



     (b) Notwithstanding the foregoing, the Excluded Procedures shall not be deemed terminated or
settled by this Agreement and the Parties reserve their rights to continue with the Excluded
Procedures until their definitive conclusion if they wish to do so or otherwise terminate them at
their sole discretion in accordance with applicable laws.




	 	(c)	 	With respect to:
	 
	 	(i)	 	the trackage rights N-1 granted in the Ferromex Concession Title, the rights
described in Subsection 5.4 (b) and, in its case 5.4 (f), describe the complete
trackage rights of Ferromex to operate said trackage rights and the Parties hereby
stipulate and agree that they have no further disagreement about the scope or extent of
the trackage rights N-1 and that the only rights granted by such trackage right N-1 are
those described in Subsections 5.4 (b) and, in its case 5.4 (f), of this Agreement;
	 
	 	(ii)	 	the rights described in Subsection 5.5 describe the complete trackage rights of
Ferromex to operate said trackage rights DPL-2, and the Parties hereby stipulate and
agree that they have no further disagreement about the scope or extent of the trackage
rights DPL-2 and that the only rights granted by trackage right DPL-2 in Ferromex’s
Concession Title are those described in Subsection 5.5 of this Agreement;
	 
	 	(iii)	 	the trackage rights PN-10 granted in the Kansas Concession Title, the rights
described in Subsection 5.7(d) and 5.7(e) describe the complete rights of Kansas to
operate said trackage rights PN-10, and the Parties hereby stipulate and agree that
they have no further disagreement about the scope or extent of the trackage rights
PN-10 and that the only rights granted by trackage right PN-10 in Kansas’




16









 






	 	 	 	Concession Title are those described in Subsections 5.7(d) and 5.7(e) of this
Agreement;
	 
	 	(iv)	 	the rights described in Subsection 5.7(c) describe the complete trackage rights
of Kansas to operate said trackage rights DPL-1 and any other related in any way to the
Guadalajara Access Zone, and the Parties hereby stipulate and agree that they have no
further disagreement about the scope or extent of the trackage rights DPL-1, and any
other related in any way to the Guadalajara Access Zone, and that the only rights
granted by trackage right DPL-1 and any other related in any way to the Guadalajara
Access Zone in Kansas’ Concession Title are those described in Subsection 5.7(c) of
this Agreement;
	 
	 	(v)	 	the trackage rights PN-11 granted in the Kansas Concession Title and the
related switching services in the Aguascalientes Access Zone, the rights described in
Subsection 5.7(f) describe the complete rights of Kansas to operate said trackage
rights PN-11 and to serve Users in said Aguascalientes Access Zone, and the Parties
hereby stipulate and agree that they have no further disagreement about the scope or
extent of the trackage rights PN-11 and that the only rights granted by trackage right
PN-11 in Kansas’ Concession Title are those described in Subsection 5.7(f) of this
Agreement.





     (d) For the avoidance of doubt, this Agreement is not intended by the Parties to settle the
scope of, or rights granted under, trackage right N-5.



     (e) The Parties hereby specifically and conclusively agree that the inclusion of the
litigation involving amendment of Ferromex’s Concession Title in this Agreement shall not be deemed
as an acceptance on behalf of Kansas of the procedure adopted by the Federal Government of the UMS
and/or by Ferromex to amend the Ferromex Concession Title, nor that such is the appropriate
procedure to modify the Ferromex Concession Title in the future. Kansas hereby reserves its right
to challenge any such future modifications made to the Concession Title of any of the Ferromex
Parties, and Ferromex hereby agrees that it will never cite to the Federal Government of the UMS
the settlement in this Agreement of the litigation involving amendment of Ferromex’s Concession
Title as any agreement by Kansas for the method of making that amendment.



     (f) With respect to:




	 	(i)	 	Waiver of Future Actions, Rights and Procedures. The Parties agree to
expressly irrevocably and definitively waive and terminate any rights, actions, claims,
procedures, suits, remedies and, in general, any other obligation of any other nature
and before any Governmental Authority, and agree not to commence any procedure, either
judicial, administrative, arbitral or of any other nature in connection with the
enforcement of any right regarding Court Costs (costas judiciales) or any similar
concepts deriving or related, directly or indirectly to any Court Costs of proceedings
related to the Settlement Controversies and/or other controversies related, directly or
indirectly with rates applicable to trackage, switching, interlinear or terminal
services whether prior to January 1, 2009 or not.




17









 











NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL 

TREATMENT
REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED 

SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION AS PART OF THIS 

COMPANY’S CONFIDENTIAL TREATMENT REQUEST.





	 	(ii)	 	Consequently:






	 	[a] 	 	 [****]
	 
	 	[b] 	 	 [****]
	 
	 	[c] 	 	 Each of the Parties hereby grants to the other the broadest
release under applicable law in connection with any and all amounts related
solely to court costs payable by one of the Parties to other under the
mercantile proceedings referred to in paragraphs [a] and [b] .





     2.2 Authority of Agreement. This Agreement: (i) has the authority of res judicata for
all legal effects in the broadest terms of article 2953 of the Federal Civil Code regarding the
Settlement Controversies and any matter related to such Settlement Controversies and the procedures
related therewith; and (ii) terminates in a definitive and irrevocable manner all the Settlement
Controversies, as well as any other right, action, claim, procedure, suit, remedy and, in general,
any other obligation of any nature in connection with any cause, fact, act, statement and/or
procedure of any kind occurred prior to the date of this Agreement with respect to the matter or
facts of the Settlement Controversies.



     2.3 Future Proceedings. In light of the provisions of Sections 2.1 and 2.2 of this
Agreement, and in case there is any resolution from a Governmental Authority after the date of
execution hereof in connection with the Settlement Controversies, it shall be deemed that such
resolution lacks of substance and is of no force or effect between the Parties.



     Clause Three. Termination of Settlement Controversies; Waivers.



     3.1 Trackage Rights Definition Controversies. The Parties expressly acknowledge and
agree that the Trackage Rights Definition Controversies have been resolved and settled by means of
the new definitions of the terms and conditions and/or scope of the mandatory trackage and
switching rights referred to in Clause Five of this Agreement, without reserving any claim or right
to such effect.



     3.2 Other Settlement Controversies. The Parties expressly acknowledge and agree that
the other Settlement Controversies have been resolved and settled by means of the execution of this
Agreement, without reserving any claim or right to such effect.



     3.3 Past Rates Controversies and Excluded Procedures.



     (a) The Parties hereby reserve all their rights to continue with any and all of the Excluded
Procedures, none of which are settled by means of this Agreement, and to settle such Excluded
Procedures if and when they deem convenient by mutual agreement.



18









 





     (b) For the avoidance of doubt, the Parties acknowledge that the absence of settlement of the
Past Rate Controversies does not affect the agreements of the Parties with respect to the rates
mentioned in Clauses Five, Six and Seven hereof which shall govern the subject matter of such
clauses for any rates that are charged for services or actions occurring on or after the execution
date of this Agreement but do not apply to events or traffic movements occurring before the
execution date hereof (except as otherwise provided herein).



     3.4 Release.



     (a) Kansas releases the Ferromex Parties and Ferromex releases the Kansas Parties of any
responsibility, obligation and/or claim derived from, or directly related to, any Settlement
Controversy and the Settlement Procedures, without reserving any claim or right to such effect.



     (b) Ferromex grants to the Kansas Parties and Kansas grants to the Ferromex Parties,
respectively, the broadest release that corresponds pursuant to law with respect to the Settlement
Controversies, without reserving any claim or right to such effect.



     3.5 Withdrawals; Termination Acts.



     (a) The Parties hereby withdraw any type of suit, action, remedy or procedure related with the
Settlement Controversies, including, without limitation, the Settlement Procedures listed in
Exhibit C and agree to ratify such withdrawal before a notary public and, if necessary,
promptly before the relevant Governmental Authority (including the Ministry or any judicial or
administrative authority).



     (b) The Parties hereby agree to carry out any actions that are reasonably necessary and to
cooperate in good faith one with the other in order to terminate the determinations contained in
the rulings and/or resolutions issued with respect to the Settlement Controversies, to the extent
possible. Such obligation includes entering into any type of acts and/or agreements, and the
filing of all types of documents, before any judicial and/or administrative authorities, as well as
their ratification.



     (c) The Parties hereby agree to file before the courts and the administrative and Governmental
Authorities that may be necessary (as the interested Party may require), briefs by means of which
they inform of the execution of this Agreement and the terms and conditions agreed by the Parties
in connection with the subject hereof.



     (d) The Parties agree to cooperate between them in order to obtain the release and/or
cancellation of any bond, back-bond, guaranty or security deposit which have been granted by any of
them in connection with the Settlement Controversies and the Settlement Procedures. These actions
include, but are not limited to, the filing of briefs expressing the conformity of the relevant
Party with the release of such bond, back-bond, guaranty or deposit.



     (e) Without limiting the generality of the foregoing, the Parties agree to carry out the
actions and enter into the acts referred to in Exhibit E.



19









 





     (f) The Parties further agree to carry out, enter into, file, notify, ratify and/or grant the
actions, acts and documents referred to in paragraphs (a) to (e) of this Section 3.5, hereinafter
referred to as the “Termination Acts”.



     (g) The Termination Acts include, but are not limited to, appearing before the Federal Supreme
Court of Justice, the Collegiate Circuit Courts, the Unitary Circuit Courts, the Tax and
Administrative Justice Federal Court, District Courts, the Ministry and any other Governmental
Authority of any jurisdiction, federal or local, to ratify or grant again the Termination Acts and,
in general, to carry out any fact or act necessary or advisable in order to comply with all and
each of the issues established in paragraphs (a) to (e) of this Section 3.5.



     (h) Except as otherwise stated herein, Kansas and Ferromex agree to carry out the Termination
Acts no later than 60 (sixty) calendar days following the execution of this Agreement, unless both
Parties expressly agree in writing to extend such term. The Parties shall jointly file briefs
providing for the termination of the Settlement Procedures within 10 (ten) business days after the
execution of this Agreement.



     3.6 Waiver of Actions and Rights. The Parties hereby expressly irrevocably and
definitively waive and terminate:




	 	(i)	 	any rights, actions, claims, procedures, suits, remedies and, in general, any
other obligation of any other nature and before any Governmental Authority in
connection with the Settlement Controversies and/or with the subject or facts directly
related therewith, including, without limitation, any judicial, administrative and any
other decisions of whatever nature; and/or
	 
	 	(ii)	 	any rights derived from any action, fact, circumstance or act performed by the
Parties in connection with the procedures related to the Settlement Controversies; and
	 
	 	(iii)	 	any rights, actions, claims, procedures, suits, criminal complaints, remedies
and, in general, any other obligation of any other nature and before any Governmental
Authority in connection with any cause, fact, act, omission, statement and/or procedure
of any species occurred prior to the date of this Agreement with respect to the
Settlement Controversies.





     3.7 Renunciation of Future Procedures. The Parties hereby reciprocally agree to not
commence any procedure, either judicial, administrative, arbitral or of any other nature (including
criminal complaints), in the future against, or that in any way may affect, the other Party or any
of the Kansas Parties or the Ferromex Parties, based on any acts, actions or omissions that have
occurred prior to the date hereof related with or arising from the Settlement Controversies and
with the matter or facts related therewith, including, without limitation, any judicial,
administrative and any other decisions of whatever nature.



20









 





NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL 

TREATMENT
REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED 

SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION AS PART OF THIS 

COMPANY’S CONFIDENTIAL TREATMENT REQUEST.




     3.8 Additional Documents and Acts.



     (a) The Parties shall enter into and deliver the additional documents and carry out the
subsequent acts that are necessary in order to carry out and give force and effect to the
provisions of this Clause Three.



     (b) Each of Kansas and Ferromex agrees to carry out all necessary and/or desirable acts and
actions in order for the Kansas Parties and the Ferromex Parties, respectively, to perform any acts
or actions required to carry out and give force and effect to what is established in this Clause
Three.



     Clause Four.Management of Future Traffic.



     4.1 Future Traffic.



     (a) Upon the execution of this Agreement the provisions hereof shall apply to all Railroad
Equipment of the Parties on the Subject Trackage of the other Party, unless otherwise agreed in
writing by the President of Kansas and the Chief Executive Officer of Ferromex; provided, however,
that any operational issues arising from the implementation of Sections 5.4, 5.5, 5.6 and 5.7 shall
be subject to the Transition Period provisions stated in Section 12.3.



     (b) [****]



     4.2 Additional Documents and Acts.



     (a) The Parties shall execute and deliver the additional documents and shall perform the
subsequent acts that may be necessary in order to carry out and give force and effect to the
provisions of this Clause Four.



     (b) Each of Kansas and Ferromex agrees to carry out all necessary and/or desirable acts and
actions now or in the future in order for the Kansas Parties and the Ferromex Parties,
respectively, to perform any acts or actions required to carry out and give force and effect to
what is established in this Clause Four.



21









 





NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A 
CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND 

HAVE BEEN FILED
SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS 

PART OF THIS
 COMPANY’S CONFIDENTIAL TREATMENT REQUEST.




     Clause Five. Trackage Rights.



     5.1 Ferromex Rates.



     (a) Except as otherwise expressly agreed in this Agreement, from and after January 1, 2010,
[****] using the trackage rights that correspond to Kansas pursuant to this Agreement, the Kansas
Concession Title, the Ferromex Concession Title and/or otherwise, as adjusted pursuant to Section
5.8(c) of this Agreement.



     (b) The Parties agree that for trackage rights used by Kansas between January 1, 2009, and
January 1, 2010, [****].



     5.2 Kansas Rates.



     (a) Except as otherwise expressly agreed in this Agreement, from and after the execution date
of this Agreement, Kansas shall have the right to charge Ferromex and Ferromex shall have the
obligation to pay to Kansas, a rate of [****] using the trackage rights that correspond to Ferromex
pursuant to this Agreement, the Kansas Concession Title, the Ferromex Concession Title and/or
otherwise, as adjusted pursuant to Section 5.8(c) of this Agreement.



     (b) The Parties agree that for trackage rights used by Ferromex between January 1, 2009, and
January 1, 2010, the above mentioned rate shall be [****].



     5.3 Acknowledgment. The Parties hereby acknowledge the validity, in terms of Article
36 of the Railroad Service Law, of the agreements reached with respect to the rates that from now
on they shall pay each other for trackage rights pursuant to Sections 5.1 and 5.2 above. In such
respect they agree not to petition the Ministry to make any determination of rates in such regard
under said Article 36 of said Railroad Service Law or otherwise.



     5.4 Trackage Rights granted to Ferromex at Monterrey.



     (a) Subject to the terms and conditions herein provided, including the specific instructions
given by the Kansas dispatcher on a case by case basis and by means of payment of the general rate
referred to in Section 5.2 above, Kansas hereby grants to Ferromex, pursuant to first paragraph of
Article 36 of the Railroad Service Law, trackage rights over the segments of Kansas Trackage
indicated in the following paragraphs of this Section 5.4 and as further detailed in Appendix
1 attached hereto.



     (b) Trackage Rights to Guerrero Facility. Kansas hereby grants Ferromex a limited
trackage right to serve the Guerrero Facility in the Monterrey Access Zone, including the right to
serve any future User operating that facility. Ferromex’s access to the Guerrero Facility is
limited to the following route, which is further described in Appendix 1: [1] from
Line M KP 524+000 through Kansas’ Monterrey Terminal on tracks designated by Kansas local
supervision to Line BI KP 2+300; and [2] from Line BI KP 2+300 to the north wye connection
at Line BI KP



22









 




2+290; [3] over the north wye connection to Line BMA KP 0+244; [4] from Line
BMA KP 0+244 to the connection with the Former Line F at Line BMA KP 0+640 and Former Line F KP
0+000; [5] from Former Line F KP 0+000 to and including the switch accessing the Guerrero
Facility at Former Line F KP 2+275.90.




     (c) Certain Exclusions. For the avoidance of doubt, Ferromex will not have access
through trackage rights to any facilities within the Monterrey Access Zone, other than to (x) the
Guerrero Facility identified in paragraph (b) above and, (y) any New Ternium Facility as provided
under paragraph (f) of this Section 5.4. For further clarification and for the avoidance of doubt,
the following facilities, currently operated by Ternium or an Affiliate of Ternium and that are
currently being served by Kansas shall not ever qualify as a New Ternium Facility, and Ferromex
shall not be allowed to serve them through trackage rights: (i) the facility known as “Churubusco”
located at Former Line M KP 2+535.58 and Line F KP 2+836.93; (ii) the facility known as “Juventud”
located at Former Line F 4+571.50; and (iii) the facility known as “Ternium Norte” located at Line
F KP 9+734.00. The naming of specific facilities in the immediately preceding sentence is not a
limitation on the exclusion stated in the first sentence of this paragraph.



     (d) Capacity. Under the trackage right granted under paragraph (b) above, Ferromex
shall not tender, and Kansas shall not be obligated to accept, Trains that exceed the capacity of
the Guerrero Facility or that in any other manner may unreasonably congest Kansas Trackage;
provided, however, that to the extent such congestion occurs, Kansas shall seek to provide if
possible an alternative route for Ferromex to be able to access the Guerrero Facility as determined
by the Kansas dispatcher on a case by case basis and in a non-discriminatory basis.



     (e) Switching to the Guerrero Facility. Should Ferromex choose to serve the Guerrero
Facility by means of switching services by Kansas, Kansas will provide switching service for
Ferromex to the Guerrero Facility under the terms and conditions specified in Section 5.4(h) and
Clause Seven, below.



     (f) New Facilities of Ternium. Kansas will also grant Ferromex access through trackage
rights to serve other facilities acquired by Ternium (or an Affiliate controlled by Ternium) after
the execution of this Agreement and that are located within the Monterrey Access Zone, after the
following process has been completed:




	 	(i)	 	Ferromex must notify to Kansas the existence of the new facility owned by the
relevant Ternium Affiliate (the “New Ternium Facility”). This notice shall include: (a)
the precise location of the New Ternium Facility that Ferromex requests to access; (b)
the name of the Ternium Affiliate that owns the New Ternium Facility; and (c)
reasonable evidence that the Affiliate company in question is controlled by Ternium and
that the New Ternium Facility is owned by said Affiliate;
	 
	 	(ii)	 	Once the documentation has been received by Kansas, Kansas shall have 20
(twenty) business days to review said documents and meet with representatives of
Ferromex to solve any questions that Kansas’ may have in connection with the
aforementioned notice and/or the New Ternium Facility;




23









 






	 	(iii)	 	If Kansas is satisfied with the evidence delivered by Ferromex in accordance
with paragraph (i) above and/or the documents and information generated or delivered in
the meetings held in accordance with paragraph (ii) above, Kansas will deliver Ferromex
a notice indicating its satisfaction with said evidence and the institution of the
trackage rights (which notice may not be unreasonably withheld);
	 
	 	(iv)	 	The rate payable by Ferromex for the trackage rights that, in its case, are
granted under this paragraph (f), will be the general rate set forth in Section 5.2 as
increased in accordance with this Agreement;
	 
	 	(v)	 	The trackage rights to the New Ternium Facility: (a) will only begin after the
New Ternium Facility has started operations and Kansas has delivered the notice
referred in paragraph (iii) above; and (b) will cease once the New Ternium Facility
stops being owned by a Ternium Affiliate, unless either one of the following requisites
are met, in which case the trackage right to that specific New Ternium Facility shall
remain in full force and effect until the expiration of this Agreement:






	 	[a] 	 	 That Ternium (or an Affiliate thereof) has owned the New
Ternium Facility in question during the five (5) years immediately preceding
the sale or transfer of said New Ternium Facility by Ternium (or an Affiliate
thereof); or
	 
	 	[b] 	 	 Kansas is evidenced that the purchaser of the relevant New
Ternium Facility acted independently from Ferromex and its Affiliates and is a
Person who is not an Affiliate of Ferromex and the capital stock of which is
not owned in 5% or more by Ferromex or an Affiliate thereof. For these
purposes, it shall be considered reasonable evidence if Ferromex delivers,
promptly following a sale or transfer of the New Ternium Facility in question,
an officer’s certificate stating that the relevant purchaser is not an
Affiliate of Ferromex and that its capital stock is not owned, in 5% or more,
by Ferromex or an Affiliate thereof.






	 	(vi)	 	Any trackage rights granted under this section 5.4(f) will not grant Ferromex
trackage rights or any other form of rights to serve any facility other than the New
Ternium Facility, in the understanding that this provision does not affect the
provision set forth in paragraph (h) of this Section 5.4 with respect to switching
services;
	 
	 	(vii)	 	Any trackage rights granted under this Section 5.4(f) would be subject to the
specific instructions granted by the Kansas dispatcher on a case by case basis;
	 
	 	(viii)	 	If and to the extent Ferromex complies with the conditions set forth in this Clause
5.4(f) and obtains trackage rights to a New Ternium Facility that is located within the
Monterrey Access Zone on trackage different to the Former M, BMA and Former F Lines,
Kansas shall have the right to get trackage rights pursuant to Section 5.7(d) to a New
Altamira Facility; and




24









 






	 	(ix)	 	To the extent that there are any trackage rights granted in the future pursuant
to this paragraph (f), Ferromex shall not tender, and Kansas shall not be obligated to
accept, Trains that exceed the capacity of the New Ternium Facility or that in any
other manner may unreasonably congest Kansas Trackage; provided, however, that to the
extent such congestion occurs, Kansas shall seek to provide if possible an alternative
route for Ferromex to be able to access the New Ternium Facility as determined by the
Kansas dispatcher on a case by case basis and in a non-discriminatory basis;





     (g) Certain Clarifications. For the avoidance of doubt, Ferromex also has a limited
trackage rights under the N-1 trackage right to connect its trackage between Torreón and Tampico
and trackage rights to reach the Interchange tracks in Kansas’ Monterrey Yard designated by Kansas
supervisors from time to time. Ferromex access is limited to the route: [1] from Line M KP
500+000 to Line M KP 524+000; and [2] from Line M KP 524+000 to Line M 528+000 pursuant to
the N-1 trackage right, as more specifically described in Appendix 1.



     (h) General Rules. Except for the trackage rights provided in paragraph 5.4(b) above,
and in its case under Section 5.4(f), the Parties agree that any service by Ferromex to Users in
the Monterrey Access Zone shall be provided by means of switching services that Kansas has agreed
to provide to Ferromex in the Monterrey Access Zone, under the terms of and through payment of the
rate referred to, in Clause Seven below; provided that: (x) if Kansas constructs the Monterrey
Adaptation, the Interchange of Equipment between Kansas and Ferromex for said switching services to
and from Users in the Monterrey Access Zone shall be made on the Monterrey Adaptation, and (y)
until the Monterrey Adaptation is constructed, as the case may be, Interchange of Equipment for
said switching shall be made at Interchange tracks in Kansas’ Monterrey Terminal designated by
Kansas supervisors from time to time. If Kansas constructs the Monterrey Adaptation for the
Interchange of Equipment between Kansas and Ferromex for said switching services to and from Users
in the Monterrey Access Zone, said Interchange track shall be 2,600 meters long. After construction
of the Monterrey Adaptation is completed, if Ferromex and Kansas agree that additional Interchange
capacity is needed at that location, the Parties shall divide between them equally the cost of
extending the Monterrey Adaptation. For the avoidance of doubt, Kansas is not bound to build the
Monterrey Adaptation referred to in this paragraph.



     5.5 Long Trackage Right.



     (a) Subject to the terms and conditions herein provided, including the specific instructions
given by the Kansas dispatcher on a case by-case basis (which instructions shall not alter the
rights or responsibilities of the Parties set forth in this Section 5.5), Kansas hereby grants to
Ferromex, pursuant to first paragraph of Article 36 of the Railroad Service Law, by means of
payment of the general rate referred to in Section 5.2 above, trackage rights over the segments of
Kansas Trackage indicated in the following paragraphs of this Section 5.5.



     (b) Definition and Extent of the Long Trackage Right. Ferromex shall have a trackage
right over Lines B and BC, between Ramos Arizpe at Line B KP 929+007 (= Ferromex’s Line R 424+650)
to Line B’s junction with Line BC, and on Line BC from that junction to Viborillas at Line BC KP
8+756, as further described in Appendix 1 hereto (the



25









 





NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL 

TREATMENT
REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED 

SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION AS PART OF THIS 

COMPANY’S CONFIDENTIAL TREATMENT REQUEST.



“Long Trackage Right”). For the avoidance of doubt, the Parties recognize that the Long
Trackage Right includes the Line BS. Nonetheless, Kansas shall have the right to use the Line BS at
its operating discretion to serve Ferromex overhead trains using the Long Trackage Right.




     (c) Rules and Restrictions. In addition to the terms and conditions of the trackage
rights further detailed elsewhere in this Agreement, the Parties hereby acknowledge and agree that
the use of Long Trackage Right is subject to the following restrictions and limitations:




	 	(i)	 	[****]
	 
	 	(ii)	 	[****]
	 
	 	(iii)	 	[****]
	 
	 	(iv)	 	[****]
	 
	 	(v)	 	[****]
	 
	 	(vi)	 	[****]
	 
	 	(vii)	 	[****]
	 
	 	(viii)	 	[****]





     (d) Number of Trains entering the Long Trackage Right. From the execution date of this
Agreement and until January 31, 2011, [****]:




	 	(i)	 	[****]
	 
	 	(ii)	 	In accordance with the above, the formula to determine the average number of
Ferromex Trains that Kansas is obligated to accept in any calendar year after the year
2010, shall be the following:





[****]




	 	 	 	Where:
	 
	 	 	 	[****]
	 
	 	(iii)	 	Within the first 10 (ten) business days of January of 2011, and thereafter
within the first 10 (ten) business days of every month of January following the year
2011 during which this Agreement is in force, Kansas shall deliver to Ferromex a notice
indicating the number of daily Ferromex Trains that Kansas in good faith believes its
obligated to accept entering the Long Trackage Right. This notice




26









 






NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL 

TREATMENT
REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED 

SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION AS PART OF THIS 

COMPANY’S CONFIDENTIAL TREATMENT REQUEST.



shall be accompanied by the calculations made by Kansas to arrive to said number in accordance
with the preceding paragraph;





	 	(iv)	 	Within the following 10 (ten) business days after receipt of the notice
referred to in the preceding paragraph, Ferromex shall notify Kansas if Ferromex agrees
or not with the calculations made therein. If no notice is made by Ferromex within such
period, it shall be understood that Ferromex accepts the calculations made by Kansas;
	 
	 	(v)	 	If Ferromex disagrees with Kansas’ calculations, the notice indicating its
disagreement shall indicate the total number of daily Trains that Ferromex in good
faith believes that Kansas is obligated to accept during the then current calendar year
and the basis for such calculation. The disagreement, will be submitted to the
Committee referred to in Clause Twelve hereof. The Committee shall convene to address
the matter within 20 (twenty) business days after the objections from Ferromex were
delivered to Kansas;
	 
	 	(vi)	 	If, within 20 (twenty) business days after the objections from Ferromex were
delivered to Kansas, the Committee: (a) does not meet; or (b) having met, fails to
issue a unanimous resolution setting forth the number of daily Ferromex Trains that
Kansas in good faith believes its obligated to accept entering the Long Trackage Right
for the then current calendar year, either Party may submit the matter to Gálaz,
Yamazaki, Ruíz Urquiza, S.C. (or any other Affiliate of Deloitte Touche Tomatsu,
providing accounting services in the UMS), whose resolution on the subject will be
conclusive and binding, and the number of daily Ferromex Trains that Kansas its
obligated to accept entering the Long Trackage Right set forth in said resolution shall
be conclusive and binding;
	 
	 	(vii)	 	The calculations of the number of daily Ferromex Trains that Kansas its
obligated to accept entering the Long Trackage Right shall be in force from February 1
of the calendar year in which they are made, to February 1 of the following calendar
year. In case there are any disagreements regarding the calculations made by Kansas
from Ferromex, the calculations made by Kansas shall be applicable while the matter is
resolved by the Committee or Gálaz, Yamazaki, Ruíz Urquiza, S.C. (or any other
Affiliate of Deloitte Touche Tomatsu, providing accounting services in the UMS), as the
case may be;
	 
	 	(viii)	 	If on a given calendar year Kansas does not send the notice mentioned in the
preceding paragraph (i), [****]. The objection shall be filed by delivering the notice
referred to in paragraph (iv) above and thereafter the process would follow as if
Kansas would have delivered the notice mentioned in paragraph (i) above; and




27









 






	 	(ix)	 	At any point in the process, Kansas and Ferromex may agree in writing to the
number of Trains entering the Long Trackage Right for that calendar year.





     (e) Re-crewing. With respect to the Long Trackage Right, Kansas and Ferromex currently
anticipate that it will ordinarily be necessary to re-crew Ferromex Trains in order for them to
complete their transit of the Long Trackage Right. Re-crewing of the Ferromex Trains using the Long
Trackage shall be subject to the following:




	 	(i)	 	Ferromex shall, immediately prior to its Train accessing the Subject Trackage
of the Long Trackage Right, assure that the members of that Train’s crew have a minimum
of 10 (ten) hours of service remaining available under law and confirm such hours of
service remaining available under law to Kansas’ train dispatcher before entering the
Long Trackage Right;
	 
	 	(ii)	 	When it is necessary for Ferromex trains to be re-crewed while transiting the
Long Trackage Right, the Kansas train dispatcher has sole authority for determining the
location at which the Train will be re-crewed and for notifying the designated Ferromex
supervisor of the Train’s estimated arrival time at that location, which shall be done
with at least 6 (six) hours in advance before Ferromex’s Train is scheduled to arrive
at that location. The Kansas train dispatcher will designate re-crewing locations as
close to the municipality of San Luis Potosi as is, in that dispatcher’s reasonable
operating discretion, operationally feasible; in the understanding that if the
re-crewing siding referred to in paragraph (v) below is built by Ferromex, the
re-crewing of Ferromex’s Trains would take place on that siding on a regular basis,
except that Kansas may direct said re-crewing to occur at some other location for
operational reasons not in the ordinary course of business at Kansas’ reasonable
operating discretion and for the benefit of both Parties;
	 
	 	(iii)	 	To minimize delays, Ferromex will employ its best efforts to have each re-crew
crew available for duty at the re-crewing location on the Long Trackage Right
designated by the Kansas dispatcher and ready to depart by the Ferromex Train’s
estimated arrival time provided by the Kansas dispatcher. Ferromex shall assure that
the members of its re-crew crew have sufficient hours of service remaining available
under law to allow Ferromex’s Train to move the entire remaining length of the Long
Trackage Right without Ferromex’s Train re-crewing again;
	 
	 	(iv)	 	If a Ferromex Train is not ready to depart from the Kansas -designated
re-crewing location on the Long Trackage Right within 120 (one hundred and twenty)
minutes after the Ferromex Train’s actual arrival time at that location, as measured by
the lapse of time between the arrival time recorded by the train dispatcher and the
ready to depart time reported to the train dispatcher by the Ferromex crew, the re-crew
will be counted as a failure. [****]
	 
	 	(v)	 	The Parties agree that Ferromex has the option to have constructed at its own
cost, or pay for, a siding for the re-crewing referred to in this paragraph (e), which
shall be subject to the following:




28









 












	 	[a] 	 	 The siding shall be built in a location mutually agreed to by
Ferromex and Kansas;
	 
	 	[b]  		 The construction of the siding shall be made by Kansas or a
contractor submitted by Ferromex and approved in writing by Kansas;
	 
	 	[c] 	 	 Before commencing construction of the siding, Ferromex shall
submit to Kansas a copy of the executive project (proyecto ejecutivo) of the
siding, which shall be approved by Kansas, in the understanding that Kansas may
request changes to said executive project (proyecto ejecutivo) in order to
accommodate for specific technical requirements or compliance with the
Applicable Framework;
	 
	 	[d] 	 	 Construction of the siding must be completed within the time
frame agreed to by the Parties, in the understanding that Kansas may inspect
the construction site from time to time;
	 
	 	[e] 	 	 Ferromex shall be responsible for obtaining and complying with
any and all approvals from any Governmental Authority that is required to
construct and operate the siding, in the understanding that Kansas will
cooperate with Ferromex in obtaining said Governmental Approval;
	 
	 	[f] 	 	 Any land lots that are required to be purchased for the siding,
shall be paid for by Ferromex;
	 
	 	[g] 	 	 The materials employed in the construction of the siding shall
be of the characteristics and quality reasonably required by Kansas in order to
comply with the Applicable Framework;
	 
	 	[h] 	 	 Ferromex shall be responsible for paying all costs associated
with the security of the workers engaged in the construction of the siding;
	 
	 	[i] 	 	 The siding shall be used as a re-crewing point in the Long
Trackage Right, in the understanding that under no circumstance may Ferromex:
(a) install crew change facilities at the siding (other than locker rooms); (b)
build any connection to the siding, other than to the Long Trackage Right and
in strict compliance with any requirements indicated by Kansas;
	 
	 	[j] 	 	 The siding must be at least 3,000 (three thousand) meters long;
	 
	 	[k] 	 	 After the construction of the siding is completed and it has
received all required approvals from the competent Governmental Authorities,
the siding shall become part of Kansas’ Subject Trackage, in the understanding
that Ferromex shall, at its sole cost and expense and in its own discretion,
maintain and make necessary repairs to said siding.





     5.6 Trackage Rights to Ferromex; Access to Monterrey By-Pass.



29









 





     (a) In the event that Ferromex builds and operates the Monterrey By-Pass, Kansas hereby and as
of this moment grants to Ferromex a trackage right, between Line F KP 43+842 (= Line MF KP 17+755)
and Line F KP 20+700 and between Line BF KP 39+658 (= Line B KP 1038+323) and Line BF KP 35+876 (=
Line M KP 535+811), as further described in Appendix 1, in order for Ferromex to access the
Monterrey By-Pass with Ferromex’s Trains exclusively for the purposes described in 5.6(b) and (c)
below. Ferromex may begin to use such trackage right only after the construction of the Monterrey
By-Pass effectively begins, and only if Ferromex did provide Kansas with a written notice
indicating its intention to begin construction of the Monterrey By-Pass at least 90 (ninety) days
before construction is scheduled to commence.



     (b) If construction of the Monterrey By-Pass is not completed within 24 (twenty four) months
of Ferromex’s first Train moving on said trackage right, said trackage right shall cease until such
time as the entire the Monterrey By-Pass has been completed.



     (c) Until such time as the entire Monterrey By-Pass has been completed and Kansas’ trackage
right on the completed Monterrey By-Pass takes effect, which right is granted in Section 5.7(b) of
this Agreement, takes effect, the trackage right granted in this Section 5.6 shall only be used by
Ferromex for transporting materials and equipment that will actually and only be used in
construction of the Monterrey By-Pass; in the understanding that Ferromex will not be able to use
this trackage right for more than 3 (three) Trains and/or Tractive Equipment on any calendar day.
Thereafter, Ferromex may use said trackage right only for overhead traffic movements between the
Monterrey By-Pass and lines granted to Ferromex in its Concession Title (but not including any line
on which trackage rights are granted to Ferromex in the Ferromex Concession Title). For the
avoidance of doubt, the immediately preceding sentence means that Ferromex may not use the trackage
right granted in Section 5.7(b) to handle Local Traffic in the Subject Trackage over which such
trackage right is granted.



     (d) Ferromex may not use the trackage right referred to in this Section 5.6 to serve Local
Traffic in the Subject Trackage over which such trackage right is granted or to transport any
shipment between a point of origin or destination located at an intermediate point between Line F
KP 43+842 (= Line MF KP 17+755) and Line F KP 20+700 and between Line BF KP 39+658 (= Line B KP
1038+323) and Line BF KP 35+876 (= Line M KP 535+811) including but not limited to Pesquería nor to
any User within the Monterrey Access Zone.



     5.7 Trackage Rights to Kansas.



     (a) Subject to the terms and conditions herein provided, including the specific instructions
given by the Ferromex dispatcher on a case-by-case basis (which instructions shall not alter the
rights or responsibilities of the Parties set forth in this Section 5.7), Ferromex hereby grants
Kansas, pursuant to first paragraph of Article 36 of the Railroad Service Law, by means of payment
of the general rate referred to in section 5.1 above, trackage rights over the following segments
of the Ferromex Trackage referenced in the following paragraphs and further detailed in
Appendix 1 attached hereto.



     (b) Monterrey By-Pass. In the event that Ferromex builds and operates the Monterrey
By-Pass, Ferromex hereby and as of this moment grants Kansas a trackage right over the Monterrey
By-Pass, in order to allow Kansas to avoid entering congested portions of the City of



30









 





NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL 

TREATMENT
REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED 

SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION AS PART OF THIS 

COMPANY’S CONFIDENTIAL TREATMENT REQUEST.



Monterrey. Said rights shall not allow Kansas to handle any Local Traffic by delivering to or
picking up any shipments for any User at any point on the Monterrey By-Pass.




     (c) Guadalajara Access Zone. Ferromex hereby and as of this moment grants Kansas a
trackage right over Line A, Line I and Line T, between Mariscala (at Line A KP 263+922) and
Guadalajara (at Line T KP 1740+346) as further identified in Appendix 1, to and/or from the
Guadalajara Access Zone, in accordance with the following:




	 	(i)	 	Number of Trains. From the execution date of this Agreement and until
January 31, 2011, [****]:






	 	[a] 	 	 [****]
	 
	 	[b] 	 	 [****]





[****]




	 	 	 	Where:
	 
	 	 	 	[****]






	 	[c] 	 	 Within the first 10 (ten) business days of January of 2011, and
thereafter within the first 10 (ten) business days of every month of January
following the year 2011 during which this Agreement is in force, Ferromex shall
deliver to Kansas a notice indicating the number of daily Kansas Trains that
Ferromex in good faith believes its obligated to accept entering this trackage
right. This notice shall be accompanied by the calculations made by Ferromex to
arrive to said number in accordance with the preceding paragraph;
	 
	 	[d] 	 	 Within the following 10 (ten) business days after receipt of
the notice referred to in the preceding paragraph, Kansas shall notify Ferromex
if Kansas agrees or not with the calculations made therein. If no notice is
made by Kansas within such period, it shall be understood that Kansas accepts
the calculations made by Ferromex;
	 
	 	[e] 	 	 If Kansas disagrees with Ferromex’s calculations, the notice
indicating its disagreement shall indicate the total number of daily Trains
that Kansas in good faith believes that Ferromex is obligated to accept during
the then current calendar year and the basis for such calculation. The
disagreement, will be submitted to the Committee referred to in Clause Twelve
hereof.




31









 






NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL 

TREATMENT
REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED 

SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION AS PART OF THIS 

COMPANY’S CONFIDENTIAL TREATMENT REQUEST.





	 	 	 	The Committee shall convene to address the matter within 20 (twenty) business days after
the objections from Kansas were delivered to Ferromex;
	 
	 	[f] 	 	 If, within 20 (twenty) business days after the objections from
Kansas were delivered to Ferromex, the Committee: (a) does not meet; or (b)
having met, fails to issue a unanimous resolution setting forth the number of
daily Kansas Trains that Ferromex is obligated to accept entering the Long
Trackage Right for the then current calendar year, either Party may submit the
matter to Gálaz, Yamazaki, Ruíz Urquiza, S.C. (or any other Affiliate of
Deloitte Touche Tomatsu, providing accounting services in the UMS), whose
resolution on the subject will be conclusive and binding, and the number of
daily Kansas Trains that Ferromex is obligated to accept entering this trackage
right set forth in said resolution shall be conclusive and binding;
	 
	 	[g] 	 	 The calculations of the number of daily Kansas Trains that
Ferromex is obligated to accept entering the Long Trackage Right shall be in
force from February 1 of the calendar year in which they are made, to February
1 of the following calendar year. In case there are any disagreements regarding
the calculations made by Ferromex from Kansas, the calculations made by Kansas
shall be applicable while the matter is resolved by the Committee or Gálaz,
Yamazaki, Ruíz Urquiza, S.C. (or any other Affiliate of Deloitte Touche
Tomatsu, providing accounting services in the UMS), as the case may be;
	 
	 	[h] 	 	 [****]
	 
	 	[i] 	 	 At any point in the process, Kansas and Ferromex may agree in
writing to the number of Trains entering this trackage right for that calendar
year.






	 	(ii)	 	Certain Rules and Clarifications. For the avoidance of doubt, a Kansas
Train may enter and exit the trackage right granted in this Section 5.7(c) to deliver
directly to, or to pick up directly from, industries and/or Users located within the
Guadalajara Access Zone above only if all of the Cars in the Kansas Train are
to be delivered to, or were picked up from, the same industry and/or User.
	 
	 	(iii)	 	Switching Services. If a Kansas Train entering the trackage right
granted in this Section 5.7(c) at Mariscala (at Line A KP 263+922) includes Cars
destined to more than one industry and/or User located within the Guadalajara Access
Zone, or if Kansas notifies Ferromex that Kansas wishes to move Cars tendered for rail
movement at more than one industry and/or User located within the Guadalajara Access
Zone to exit this trackage right at Mariscala (at Line A KP 263+922) using




32









 






NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL 

TREATMENT
REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED 

SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION AS PART OF THIS 

COMPANY’S CONFIDENTIAL TREATMENT REQUEST.





	 	 	 	a single Kansas Train, Ferromex shall provide switching services to Kansas to deliver the
Cars to or to pick up the Cars from more than one industry and/or User located within the
Guadalajara Access Zone, and shall Interchange such Cars with Kansas at the Guadalajara Terminal on
the tracks designated by the Ferromex train dispatcher from time to time. Said switching services
shall be provided under the terms of and through payment of the rate referred to, in Clause Seven
below.
	 
	 	(iv)	 	Cross Border Traffic. This trackage right shall not be used to handle
any cross-border traffic, which is any traffic moved across the border between the UMS
and the United States of America by rail and that has final origin or destination
outside of the UMS. In addition to traffic billed directly to or from a country outside
the UMS, this provision also precludes moving traffic over the Subject Trackage which
has an initial origin or final destination in the United States of America or Canada
and that moves on Rule 11 rates and/or which is re-billed at an international border.
	 
	 	(v)	 	Tractive Equipment at the Guadalajara Terminal. With respect to this
trackage right, Kansas and Ferromex currently anticipate that it will ordinarily be
necessary for Kansas’ Tractive Equipment to remain at the Guadalajara Terminal. To this
end, Ferromex will allow for Kansas’ Tractive Equipment to remain at the Guadalajara
Terminal until those units are ready and re-crewed and prepared to be sent out of the
Guadalajara Terminal; in accordance with the following:






	 	[a] 	 	 Until such time as the siding or facility referred to below is
built, [****]
	 
	 	[b] 	 	 The Parties agree that Kansas has the option to have
constructed at its own cost, or pay for, a siding or other form of facility to
store, re-crew and otherwise prepare its units of Tractive Equipment, which
shall be subject to the following:






	 	(1)	 	The siding or other form of facility shall be
built in a location mutually agreed to by Ferromex and Kansas;
	 
	 	(2)	 	The construction of the siding shall be made by
Ferromex or a contractor submitted by Kansas and approved in writing by
Ferromex;
	 
	 	(3)	 	Before commencing construction of the siding or
facility, Kansas shall submit to Ferromex a copy of the executive
project (proyecto ejecutivo) of the siding or facility, which shall be
approved by Ferromex, in the understanding that Ferromex may request
changes to said executive project (proyecto ejecutivo) in order to




33









 






	 	 	 	accommodate for specific technical requirements or compliance with
the Applicable Framework;
	 
	 	(4)	 	Construction of the siding or facility must be
completed within the time frame agreed to by the Parties, in the
understanding that Ferromex may inspect the construction site from time
to time;
	 
	 	(5)	 	Kansas shall be responsible for obtaining and
complying with any and all approvals from any Governmental Authority
that is required to construct and operate the siding or facility, in
the understanding that Ferromex will cooperate with Kansas in obtaining
said Governmental Approval;
	 
	 	(6)	 	Any land lots that are required to be purchased
for the siding or facility, shall be paid for by Kansas;
	 
	 	(7)	 	Kansas shall be responsible for paying all
costs associated with the security of the workers engaged in the
construction of the siding or facility;
	 
	 	(8)	 	The materials employed in the construction of
the siding or facility shall be of the characteristics and quality
reasonably required by Ferromex in order to comply with the Applicable
Framework;
	 
	 	(9)	 	The siding or facility shall be used as a point
to re-crew, store and prepare Kansas’ Tractive Equipment at Guadalajara
in the understanding that Ferromex may direct said re-crewing, storage
and preparation at a different location within the Guadalajara Terminal
for operational reasons and for the benefit of both Parties;
	 
	 	(10)	 	The siding or facility must have sufficient
capacity to hold at least 5 (five) units of Tractive Equipment of
Kansas;
	 
	 	(11)	 	Under no circumstance may Kansas install crew
change facilities at the siding (other than locker rooms);
	 
	 	(12)	 	After the construction of the siding or
facility is completed and it has received all required approvals from
the competent Governmental Authorities, the siding shall become part of
Ferromex’s Subject Trackage, in the understanding that Kansas shall, at
its sole cost and expense and in its own discretion, maintain and make
necessary repairs to said siding or facility; and
	 
	 	(13)	 	Once the siding or facility has been built and
may be operated in accordance with the Applicable Framework, there will
be no charge by Ferromex for any of Kansas’ Tractive Equipment held in
said siding or facility; provided that if Ferromex directs said re-




34









 






	 	 	 	crewing, storage and preparation to be made at a different location
within the Guadalajara Terminal for operational reasons as provided
in paragraph (9) above, there will be no charge by Ferromex for
holding the corresponding Kansas’ Tractive Equipment outside of said
siding or facility.





     (d) Altamira. Ferromex hereby and as of this moment grants Kansas a trackage right
over Line MB KP 0+000 to Line MB KP 19+800 and over the tracks that are necessary to reach the
Altamira Facilities to provide freight transportation service originating at and/or bound to the
Altamira Facilities, including the right to serve any future User operating the corresponding
facility. This trackage right shall also be governed by the following:




	 	(i)	 	Capacity. Under the trackage right granted under this paragraph (d),
Kansas shall not tender, and Ferromex shall not be obligated to accept, Trains that
exceed the capacity of the Altamira Facilities or that in any other manner may
unreasonably congest Ferromex Trackage; provided, however, that to the extent such
congestion occurs, Ferromex shall seek to provide if possible an alternative route for
Kansas to be able to access the Altamira Facility as determined by the Ferromex
dispatcher on a case by case basis and in a non-discriminatory basis;
	 
	 	(ii)	 	Switching to the Altamira Facilities. Should Kansas choose to serve the
Altamira Facilities (including the right to serve any future User operating the
corresponding facility) by means of switching services by Ferromex, Ferromex will
provide switching service for Kansas to the Altamira Facilities under the terms and
conditions specified in Clause Seven, below;
	 
	 	(iii)	 	Certain Exclusions. For the avoidance of doubt, Kansas does not have
trackage rights at the Port of Altamira except as described in this Section 5.7(d); and
	 
	 	(iv)	 	New Altamira Facilities. To the extent Ferromex obtains trackage rights
pursuant to Section 5.4(f) hereof to a New Ternium Facility located within the
Monterrey Access Zone on trackage different to the Former M, BMA and Former F Lines,
Kansas shall be entitled to obtain trackage rights to one (1) New Altamira Facility per
each such New Ternium Facility located within the Monterrey Access Zone on trackage
different to the Former M, BMA and Former F Lines, in the understanding that:






	 	[a] 	 	 The right from Kansas shall begin upon Kansas delivering to
Ferromex the notice referred to in Section 5.4(f)(iii), in the understanding
that Kansas shall deliver a notice to Ferromex indicating the facility that it
intends to serve upon Kansas deciding which facility would that be;
	 
	 	[b] 	 	 The rate payable by Kansas for the trackage rights that, in its
case, are granted under this paragraph (iv), will be the general rate set forth
in Section 5.1 as increased in accordance with this Agreement;
	 
	 	[c] 	 	 Any trackage rights granted under this Section 5.7(d)(iv) will
not grant Kansas trackage rights or any other form of rights to serve any
facility




35









 






	 	 	 	other than the New Altamira Facility, in the understanding that this
provision does not affect the provision set forth in paragraph (ii) of this
Section 5.7(d) with respect to switching services;
	 
	 	[d] 	 	 Any trackage rights granted under this Section 5.7(d)(iv) would
be subject to the specific instructions granted by the Ferromex dispatcher on a
case by case basis;
	 
	 	[e] 	 	 To the extent that there are any trackage rights granted in the
future pursuant to this Section 5.7(d)(iv), Kansas shall not tender, and
Ferromex shall not be obligated to accept, Trains that exceed the capacity of
the New Altamira Facility or that in any other manner may unreasonably congest
Ferromex Trackage; provided, however, that to the extent such congestion
occurs, Ferromex shall seek to provide if possible an alternative route for
Kansas to be able to access the New Altamira Facility as determined by the
Ferromex dispatcher on a case by case basis and in a non-discriminatory basis;
and
	 
	 	[f] 	 	 For the purposes hereof, a “New Altamira Facility” means a
facility located within the territory of, or land owned or managed by, the
Administración Portuaria Integral de Altamira, S.A. de C.V.





     (e) Certain Clarifications. For the avoidance of doubt, Kansas also has trackage
rights over Line M, between Line M KP 4+128 (= Line L KP 672+419) and Line M KP 27+571 pursuant to
the PN-10 trackage right, for Kansas’ Trains consisting of Cars that are to be delivered to, or
picked up from, the same industry and/or User including:




	 	(i)	 	all rail freight traffic originating in and/or bound for the Árbol Grande,
Miramar and Altamira Stations;
	 
	 	(ii)	 	any industry and/or User currently or in the future located within the area
comprised between Line M KP 4+128 (= Line L KP 672+419) and Line M KP 27+571; and
	 
	 	(iii)	 	any industry and/or User connected to Section 5.7(e)(i or ii) above, whether
directly and/or through auxiliary or secondary tracks, siding, escape tracks, spurs,
yard tracks, and/or cortavías.





     (f) Aguascalientes. Ferromex hereby and as of this moment:




	 	(i)	 	grants Kansas a trackage right between Line A KP 574+000 and Line A KP 599+320
(= Line L KP 14+320) to provide railroad services to the Nissan Facility and any future
User operating such facility;




36









 











NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL 

TREATMENT
REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED 

SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION AS PART OF THIS 

COMPANY’S CONFIDENTIAL TREATMENT REQUEST.





	 	(ii)	 	agrees to provide switching services to Kansas to deliver Cars to or to pick up
Cars from any industry and/or User located within the Aguascalientes Access Zone, and
agrees to Interchange such Cars with Kansas on the north wye connection from Line L KP
14+783 (= Line A KP 599+783) to connection with siding located in Line A KP 599+735 (as
further identified in Appendix 1). Said switching services shall be provided
under the terms of and through payment of the rate referred to, in Clause Seven below;
and
	 
	 	(iii)	 	agrees that Kansas may build at its own cost and expense any improvements that
Kansas deems convenient to increase the capacity or characteristics of Kansas’ Trackage
in the vicinity of the Aguascalientes Access Zone, at the location agreed upon with
Ferromex (which consent may not be unreasonably withheld), and after such improvements
have been completed, Ferromex agrees that the Interchange point referred to in
paragraphs (ii) and (iii) above shall be changed to that location if so requested by
Kansas in writing.





     5.8 General Provisions on Rates.



     (a) Value Added Tax. The rates payable in connection with the trackage rights
mentioned in this Clause Five shall be added with the applicable value added tax.



     (b) Billing Terms and Conditions. The terms and conditions of the conciliation,
invoicing, revision and payment of the rates referred to in this Clause Five shall be those
detailed in Clause Eleven of this Agreement, and amended as mutually agreed upon by the authorized
representatives of the Parties hereto from time to time.



     (c) [****]



     5.9 General Terms and Conditions of the Trackage Rights.



     (a) The trackage rights that the Parties grant to one another hereunder are further subject to
the following terms and conditions set forth in the following paragraphs.



     (b) Subject to the rest of the terms and conditions provided in this Agreement, Subject
Trackage User shall have the non-exclusive right to use the Subject Trackage for the operation of
its Railroad Equipment, Tractive Equipment and Dragged Equipment in its account (collectively
“Equipment”) over the Subject Trackage, all subject to the terms and conditions contained herein,
in common with Subject Trackage Owner and such other railroad company or companies as Subject
Trackage Owner has heretofore admitted or may hereafter at any time in the future admit to the
joint use of all or any part of the Subject Trackage; provided, however, that Subject Trackage
Owner may not admit to the Subject Trackage after, the execution date of this Agreement, any other
railroad company or companies whose use of the Subject Trackage will impair the quality or
viability of Subject Trackage User’s access granted in this Agreement.



37









 





     (c) Subject Trackage User shall, in good faith, use the Subject Trackage owned by Subject
Trackage Owner pursuant to, perform all acts required by applicable law to transit and operate over
the Subject Trackage owned by Subject Trackage Owner in accordance with, and shall perform all
operation over the Subject Trackage in strict compliance with, the requirements of this Agreement
and the Applicable Framework.



     (d) Immediately prior to accessing the Subject Trackage, Subject Trackage User shall assure
that its Tractive Equipment has sufficient fuel in its fuel tanks to move its entire Train the
entire length of the Subject Trackage on which the Train is to operate without Subject Trackage
User’s Train needing refueling.



     (e) Except with respect to operation of the Long Trackage Right (for which specific rules are
provided in Section 5.5(e)), Subject Trackage User shall, immediately prior to accessing the
Subject Trackage, assure that the members of its train crew have sufficient hours of service
remaining available under law to allow Subject Trackage User’s Train to move the entire length of
the Subject Trackage on which the Train is to operate without Subject Trackage User’s Train
re-crewing.



     (f) Any use of the Subject Trackage by Subject Trackage User other than the use agreed upon in
this Agreement is prohibited unless authorized in a writing executed by a duly authorized officer
of the Subject Trackage Owner or by means of any detour or reroute agreement executed by both
Parties after the execution date of this Agreement.



     (g) It is understood and agreed that in addition to the foregoing limitations, Subject
Trackage User shall not have the right, except as specifically provided in this Clause Five, to:




	 	(i)	 	Exit the section comprised by the trackage right in question at a point other
than the opposite end of such trackage right; provided that this limitation shall not
be applicable in those cases in which this Clause Five specifically provides that the
Subject Trackage User shall have the right to serve industry and/or Users located
within the trackage right in question; or,
	 
	 	(ii)	 	Set out, pickup, store or switch upon the Subject Trackage, or any part
thereof, except as necessary for handling Equipment that is bad ordered en route,
unless otherwise provided in this Agreement or agreed upon in writing by the operating
departments of both Parties; or,
	 
	 	(iii)	 	Serve any industry, customer facility, intermodal or automotive facility,
storage, team or house track now existing or constructed in the future along the
Subject Trackage, provided that this limitation shall not be applicable in those cases
in which this Clause Five specifically provides that the Subject Trackage User shall
have the right to serve industry and/or Users located within the trackage right in
question; or,
	 
	 	(iv)	 	Permit or admit any third party to the use of all or any portion of the Subject
Trackage, nor under the guise of doing its own business, contract or make any agreement
to handle as its own Trains, Tractive Equipment, or Cars over or upon the Subject
Trackage, or any portion thereof, or the Trains, Tractive Equipment




38









 






	 	 	 	and Cars of any such third party which in the normal course of business would not be
considered as the Trains, Tractive Equipment or Cars of Subject Trackage User; or,
	 
	 	(v)	 	Construct tracks connecting to the Subject Trackage without approval from the
Subject Trackage Owner; or,
	 
	 	(vi)	 	Handle any cars on or over the Subject Trackage which have a gross weight in
excess of the applicable weight limitations contained in the applicable timetable; or,
	 
	 	(vii)	 	To establish fueling locations on Subject Trackage; or
	 
	 	(viii)	 	To establish any crew change point on Subject Trackage, in the understanding that
Ferromex has the right to pay for the construction of the siding mentioned in Section
5.5(e) and Kansas has the right to pay for the construction of the siding or facility
referred to in Section 5.7(c); or
	 
	 	(ix)	 	Treat, store or dispose of Hazardous Materials on the Subject Trackage.





     5.10 Maintenance Changes in and/or Additions, Operation and Control.



     (a) The trackage rights that the Parties grant to one another hereunder are further subject to
the following terms and conditions set forth in the following paragraphs.



     (b) Subject Trackage User, at its expense, shall install and maintain upon its Equipment such
equipment, radios, or devices as may now or in the future be necessary or appropriate, in the
reasonable judgment of Subject Trackage Owner, for operation of said Equipment upon the Subject
Trackage. Subject Trackage User will not, however, be required to install any equipment or devices
not in use on Equipment of Subject Trackage Owner. Subject Trackage Owner shall consult with
Subject Trackage User prior to the adoption of new equipment, radios, or devices, including
communication or signaling systems to be employed on the Subject Trackage which have not
theretofore been generally adopted in the railroad industry or previously employed upon the Subject
Trackage.



     (c) Unless otherwise provided or agreed upon by the Parties in a writing signed by an
authorized officer of each Party, each Party shall be responsible for furnishing, at its own
expense, all labor, fuel, and train supplies necessary for the operation of its own Equipment over
the Subject Trackage. In the event a Party hereto does furnish such labor, fuel, or Train supplies
to another Party hereto, the Party receiving the same shall promptly, upon receipt of billing
therefor, reimburse the Party furnishing same for its reasonable costs thereof.



     (d) The operation by Subject Trackage User on or along the Subject Trackage shall at all times
be in accordance with the rules, instructions, and restrictions of Subject Trackage Owner, but such
rules, instructions, and restrictions shall be reasonable, just, and fair between all Parties using
the Subject Trackage and shall not unjustly discriminate against any Party.




39











 





NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A
 CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND 
HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS
 PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.




     (e) [****] Except as may be specifically provided for elsewhere in this Agreement,
nothing herein contained is intended to change practices with respect to Interchange of traffic
between the Parties or with other carriers on or along the Subject Trackage.



     (f) In case any Equipment of Subject Trackage User is bad ordered en route on the Subject
Trackage and it is necessary that it be set out, such bad ordered Equipment shall be handled as
stated in Section 9.10 hereof.



     (g) If Equipment of Subject Trackage User shall become derailed, wrecked, or otherwise
disabled while upon the Subject Trackage, it shall be re-railed or cleared by Subject Trackage
Owner, except that employees of Subject Trackage User may re-rail Subject Trackage User’s derailed
Equipment on the Subject Trackage whenever use of motorized on or off track equipment is not
required and prior permission has been granted by Subject Trackage Owner. The costs and expenses
of clearing derailments and wrecks shall be at Subject Trackage User’s expense unless otherwise
provided for in Clause Fifteen.



     (h) In the event Equipment of User shall be forced to stop on the Subject Trackage, and such
stoppage is due to insufficient on duty time remaining among User’s employees, or due to mechanical
failure of User’s Equipment, or due to User’s Equipment having inadequate fuel to complete its
movement over the Subject Trackage, or any other cause not resulting from an accident or
derailment, and such Equipment is unable to proceed, or if a train of User fails to maintain the
speed required by Owner on the Subject Trackage, or if in emergencies, crippled or otherwise
defective Equipment is set out of Subject Trackage User’s Train on the Subject Trackage, Owner
shall have the option to furnish motive power or such other assistance (including, but not limited
to, the right to recrew User’s Train) as may be necessary to haul, help or push such Equipment, or
to properly move the disabled Equipment off the Subject Trackage or off the main line thereof and
onto a siding or into a yard. The reasonable costs and expenses of rendering such assistance shall
be at User’s expense.



     (i) Before User’s Train enters onto the Subject Trackage, User shall request permission from
Owner’s dispatcher or other designated representative, and provide Owner, via electronic means, all
of the information for each Train set forth on Exhibit F. Further, User shall ascertain
that the Subject Trackage is clear and shall await confirmation from said representative that such
permission has been issued to allow User’s movements on or over the Subject Trackage. Once
permission is received by User to enter onto the Subject Trackage, User shall realign switches and
derails to their normal operating position and leave said switches and derails in their normal
operating position after completing its operations and clearing the Subject Trackage. User shall
notify Owner’s designated representative that it has completed its operations and that its
Equipment has cleared the Subject Trackage. Once User has notified Owner’s representatives that it
has cleared the Subject Trackage, User shall not reenter the Subject Trackage without again
obtaining permission from Owner’s representative pursuant to the terms of this subsection (i).



40









 





NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A
 CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND 
HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS
 PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.




     5.11 Default. Except for the cases indicated in Section 11.8 hereof (in which the
incremental penalties set forth therein shall be applicable), should Subject Trackage User handle
any traffic over the Subject Trackage in violation of the restrictions set forth in this Agreement,
Subject Trackage Owner shall be entitled to receive from Subject Trackage User the payment of
thrice the then-current charge for each Car so handled in violation of the aforesaid restrictions.



     5.12 Certain Clarifications on Trackage Rights not included within the Scope of this
Agreement.



     (a) General. The Parties hereby represent that any existing or potential controversies
regarding the scope, terms or conditions of trackage rights N-2, N-3 and N-5 are not settled by
means of this Agreement; provided, however that: (i) the Parties have the intention of making
certain clarifications with respect to such trackage rights as indicated in the following
paragraphs of this Section 5.12; and (ii) [****]. In accordance with the foregoing, the Parties
hereby expressly reserve any and all rights that they have to initiate and/or continue with
whatever legal proceedings they deem appropriate in connection with the aforementioned trackage
rights.



     (b) Trackage Right N-2. For the avoidance of doubt, Ferromex has the trackage right
identified in the corresponding exhibits to the Ferromex and Kansas Concession Titles as trackage
right N-2.



     (c) Trackage Right N-3. For the avoidance of doubt, Ferromex has the trackage right
identified in the corresponding exhibits to the Ferromex and Kansas Concession Titles as trackage
right N-3.



     (d) Pesquería Facility. The Parties hereby acknowledge and agree that the Pesquería
Facility is not included within the scope of the trackage rights referred to in paragraphs (b) and
(c) of this Section 5.12.



     (e) Trackage Right N-5. For the avoidance of doubt, the Parties hereby agree that the
Ferromex Trains using the N-5 trackage right are not to be counted as part of the Ferromex Trains
entering the Long Trackage Right as provided under Section 5.5(d).



     Clause Six. Interline Traffic Services Rates.



     6.1 General. Unless otherwise agreed to herein, from and after the execution date of
this Agreement, the Parties agree to the rates for Interline Traffic established in the following
Sections of this Clause Six.



41









 





NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL 

TREATMENT
REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND  HAVE BEEN FILED 

SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION AS PART OF THIS 

COMPANY’S CONFIDENTIAL TREATMENT REQUEST.




     6.2 Complementary Interline Traffic.



     (a) Complementary Interline Traffic Rates Matrix. For Interline Traffic that needs to
go from a point of origin to a point of destination via a particular route because there are no
alternative routes (“Complementary Interline Traffic”), the applicable rates shall be those
indicated in the matrix (the “Matrix”) attached hereto as Exhibit G, which determines the
portion of the rate that shall be applied to the User that corresponds to each of the Parties for
each route specified therein; the rate so determined shall constitute the rate for Complementary
Interline Traffic. The Parties shall work jointly to reach an agreement within the following 30
(thirty) calendar days to agree on the applicable rates for any route that is not contemplated in
the Matrix. Also, the Parties may change the rate of any particular route within the term set forth
in paragraph (c) below.



     (b) Rates not Conditional. The Party that is not responsible for contracting with the
User shall be entitled to charge the rate applicable under the Matrix regardless of the terms and
conditions that are quoted or agreed between the other Party and the User.



     (c) Term of the Matrix. The Matrix shall be in force from the execution of this
Agreement and until December 31, 2010. Once such term has elapsed, each of the Parties may
indicate to the other Party their respective increases to one or more of the rates indicated in
said Matrix (in addition to the provisions of Section 6.5 (c)) and in case no agreement can be
reached with respect to such rates, the Parties may apply the corresponding TUCE Rates.



     6.3 Alternative Interline Traffic.



     (a) Free Determination. For Interline Traffic that needs to go from a point of origin
to a point of destination that has alternative routes (“Alternative Interline Traffic”), [****].



     (b) [****]



     6.4 [****]




     6.5 General Provisions on Rates.



     (a) Value Added Tax. The rates payable in connection with Complementary Interline
Traffic and Alternative Interline Traffic mentioned in this Clause Six shall be added with the
applicable value added tax.



42









 





NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A
 CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND
 HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS
 PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.




     (b) Billing Terms and Conditions. The terms and conditions of the conciliation,
invoicing, revision and payment of the rates referred to in this Clause Six shall be those detailed
in Clause Eleven of this Agreement, and amended as mutually agreed upon by the authorized
representatives of the Parties hereto from time to time.



     (c) Periodic Adjustment of Rates. [****]



     (d) [****]



     6.6 Acknowledgment. The Parties hereby acknowledge the validity, in terms of Article
36 of the Railroad Service Law, of the agreements reached with respect to the rates that from now
on they shall pay each other under this Clause Six. [****]



     6.7 Absence of Participation. Nothing contained in this Clause Six shall be deemed as
a change or alteration of the rules and restrictions contained in Clause Five with respect to the
trackage rights granted to the Parties nor shall the rates provided for in the Matrix be deemed to
supersede or replace the applicable rates to be charged in connection with such trackage rights.



     Clause Seven.Switching Services.




	 	7.1	 	[****]
	 
	 	(a)	 	[****]
	 
	 	(b)	 	For purposes of the preceding paragraph:
	 
	 	(i)	 	a loaded Car means a Car carrying any form of freight; [****]; and
	 
	 	(ii)	 	an empty Car is a Car that is not a Loaded Car. A tank Car will be considered
an empty Car when it has been unloaded [****].





     (c) For the avoidance of doubt, when a Car is on the Trackage of another Party under switching
services, that Car must be treated as either a loaded Car or an empty Car according to the above.



     (d) The Parties agree that for switching services provided by one Party to [****].



     (e) Except as expressly provided otherwise, this Agreement is not intended to create new, or
restrict or terminate existing, switching services.



     7.2 General Provisions on Rates.



     (a) Value Added Tax. The rates payable in connection with the services mentioned in
this Clause Seven shall be added with the applicable value added tax.



43









 





NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A 
CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND
 HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS 
PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.




     (b) Billing Terms and Conditions. The terms and conditions of the conciliation,
invoicing, revision and payment of the rates referred to in this Clause Seven shall be those
detailed in Clause Eleven of this Agreement, and amended as mutually agreed upon by the authorized
representatives of the Parties hereto from time to time.



     (c) Periodic Adjustment of Rates. [****].



     7.3 Acknowledgment. The Parties hereby acknowledge the validity, in terms of Article
36 of the Railroad Service Law, of the agreements reached with respect to the rates that from now
on they shall pay each other pursuant to this Clause Seven.
[****].



     Clause Eight.Points of Interchange.



     8.1 General.



     (a) The location of tracks designated for pickup and delivery of Dragged Equipment at the
point of Interchange in connection with the provision of switching services and interline services
shall be as mutually agreed upon by the authorized representatives of the Parties hereto from time
to time unless otherwise specified herein.



     (b) Dragged Equipment shall be deemed to be in the receiving Party’s account when placed on
the designated Interchange tracks and the Tractive Equipment of the delivering Party is uncoupled
therefrom and said Dragged Equipment is accompanied or preceded by proper forwarding data via
electronic methods pursuant to and as defined by the AAR. The management, operation, dispatching
and maintenance of the tracks subject to switching rights and interline service shall, at all
times, be under the exclusive direction and control of owner of such tracks, and the movement of
Equipment over and along such tracks shall at all times be subject to the direction and control of
the track owner’s authorized representatives and in accordance with such reasonable operating rules
as track owner shall from time to time institute, provided, however, that in the management,
operation, dispatching and maintenance of said tracks, the track owner and the track user shall be
treated equally and in a non-discriminatory basis in accordance with this Agreement and the
Applicable Framework.



     (c) All operating, dispatching and maintenance decisions by Subject Trackage Owner affecting
the movement of Equipment over the Subject Trackage shall be made on a non-discriminatory basis,
without reference to ownership. The foregoing shall include, without limitation, decisions as to
terminal departure times, destination terminal receiving times, en-route delays, track maintenance
and the scheduling of maintenance windows. Subject Trackage Owner shall make timely notification
to Subject Trackage User of operating rules and any changes thereto.



44









 





     8.2 Monterrey.



     (a) With the purpose of alleviating traffic in the City of Monterrey and in order to avoid
Ferromex’s Equipment entering into the loading yard (patio de carga) of Monterrey (as defined in
the Kansas’ schedule registered with the Ministry) the Interchange for the switching service shall
be made on the tracks that Kansas may construct in the vicinity of Line BF, between Line M KP
535+811 and Line B KP 1038+323 (the “Monterrey Adaptation”).



     (b) The Parties hereby agree that Kansas shall have the right (but not the obligation) to
undertake the Monterrey Adaptation.



     (c) Ferromex hereby agrees that, in the event that the construction of the Monterrey
Adaptation involves the use of Ferromex’s right of way, including the infrastructure under the
Ferromex Concession Title, Ferromex will review in a timely manner the project submitted by Kansas
for such purposes, and will grant or reject the approvals necessary therefor based on the impacts
such project may have on Ferromex. Ferromex shall not unreasonably refuse Kansas the right to
construct the Monterrey Adaptation but shall, instead, work in good faith to find a safe and cost
effective means to construct said Monterrey Adaptation.



     8.3 Altamira. Except as provided in Section 5.7(d), the Parties agree that Kansas
shall not have access through trackage rights of any type to the facilities of any User located in
the Port of Altamira. To such effect, the Parties agree that the rendering of the service to Users
located at the Port of Altamira (or to the Users described in 5.7(d) above if Kansas so decides),
Altamira, Miramar and Árbol Grande shall be made through switching services that Ferromex shall
provide to Kansas, through payment of the rate referred to in Clause Seven above, in the
understanding that the Interchange of equipment shall be made at Doña Cecilia, on tracks 101, 102
and 103 or such other tracks as are agreed to by the Parties, provided that Ferromex shall access
those tracks only through tracks 500 and 501.



     8.4 Celaya.



     (a) The parties hereby designate the Celaya Yard, located at Line A KP 292+000, and the two
sidings located at Line NB KP 68+633 and Line NB KP 67+252, as the point of Interchange for any
interlineal traffic originating from, or bound to, industries and/or Users located in the Bajío
Area, except as specified in paragraph (b) below. The Parties agree that this Interchange point
supersedes any prior agreement regarding Interchange points for interlineal traffic moving to or
from points in the Bajío Area, and that any and all prior agreements or obligations acquired with
respect to Interchange for traffic moving to or from the Bajío Area are hereby terminated. For the
avoidance of doubt, no location within the State of Querétaro shall be used as a point of
Interchange except as otherwise agreed by the Parties or ordered by a court of competent
jurisdiction.



     (b) Paragraph 8.4(a) above shall not apply to interlineal traffic originating from, or bound
to industries inside the Guadalajara Access Zone. Instead, such interlineal traffic shall be
Interchanged in the Guadalajara Terminal.



45









 





     Clause Nine. Maintenance and Operation of Subject Trackage.



     9.1 General Rules. Subject to the Applicable Framework, Subject Trackage User shall
have the right to construct, maintain, repair, and renew, at its sole cost and expense, and, as
permitted by the corresponding legal provisions, the tracks which connect the respective lines of
the Parties and which are located on the right-of-way of Subject Trackage User and to the clearance
point in right-of-way of Subject Trackage Owner.



     9.2 License. Subject Trackage Owner hereby grants to Subject Trackage User a license
over that portion of Subject Trackage Owner’s property between right-of-way line and clearance
point in order for Subject Trackage User to maintain such trackage.



     9.3 Track Connections. Subject Trackage Owner shall construct, maintain, repair, and
renew, at the sole cost and expense of Subject Trackage User, and shall own the portions of the
track connections between said tracks of the Parties hereto between the headblock and clearance
point located on the right-of-way of Subject Trackage Owner. Any costs and expenses to be refunded
by the Subject Trackage User under this Section 9.3 shall be reasonable in the context of the work
performed by Subject Trackage Owner and, in any case, shall be duly documented by the applicable
invoices of the expenses incurred into by the Subject Trackage Owner.



     9.4 Alternative Routes.



     (a) Subject Trackage Owner, at its expense, shall maintain its corresponding Subject Trackage.
In the event that for operating convenience, necessity or emergency, Subject Trackage Owner directs
Subject Trackage User to use adjacent track and track connections between or beyond the ends of the
Subject Trackage owned by Subject Trackage Owner as an alternative route, then and in such event,
such trackage, track connections and appurtenances shall be deemed for that movement to be part of
the Subject Trackage owned by Subject Trackage Owner and shall be governed by all the provisions of
this Agreement.



     (b) To avoid any negative impacts on the trackage rights rates payable by Subject Trackage
User in case an alternative route is determined, if Subject Trackage Owner directs Subject Trackage
User to use an alternative route as provided in paragraph (a), the trackage rights rates payable by
Subject Trackage User in connection with its use of the alternative route may in no case exceed the
total amount that Subject Trackage User would have paid to Subject Trackage Owner for the use of
the ordinary route.



     9.5 Direction and Control of Construction, Maintenance, Repair, and Renewal.



     (a) The construction, maintenance, repair, and renewal of the Subject Trackage shall be under
the exclusive direction and control of Subject Trackage Owner. Subject Trackage Owner shall make
any changes in and additions to the Subject Trackage which may be required by law, and
progressively during construction these shall become part of the Subject Trackage. Subject
Trackage Owner may make changes and additions to the Subject Trackage which Subject Trackage Owner
deems necessary or desirable for the safe, efficient, and economical use of the Subject Trackage by
the Parties, and these shall progressively during construction become part of the Subject Trackage.



46









 





     (b) Subject Trackage User may request changes and additions to the Subject Trackage which
Subject Trackage User deems necessary or desirable for the safe, efficient, and economical use of
the Subject Trackage by the Parties. Subject Trackage Owner, if it concurs with Subject Trackage
User’s request, shall construct the changes or additions requested to which Subject Trackage Owner
is agreeable, with the cost of such construction to be divided between the Subject Trackage Owner
and the Subject Trackage User in direct proportion to each’s relative percentage of the total
Car-Kilometers of traffic moved over the Subject Trackage during the immediately-preceding twelve
(12) calendar months. The changes or additions so constructed shall become part of the Subject
Trackage. If the Subject Trackage Owner does not concur with Subject Trackage User’s request for
changes or additions to the Subject Trackage, Subject Trackage User shall have the option of having
the changes or additions that benefit only Subject Trackage User made at Subject Trackage User’s
sole cost and expense, so long as such changes or additions do not impair the use of the Subject
Trackage for the Subject Trackage Owner. If changes or additions are constructed at the sole cost
and expense of the Subject Trackage User, Subject Trackage Owner shall thereafter maintain said
changes or additions along with the remainder of the Subject Trackage. If changes or additions are
constructed at the sole cost and expense of the Subject Trackage User, and the Subject Trackage
User’s trackage right to use the Subject Trackage is lawfully terminated, Subject Trackage User
shall have the right to remove from the Subject Trackage at the Subject Trackage User’s sole cost
and expense the changes and additions that were constructed at the Subject Trackage User’s sole
cost and expense.



     (c) Subject Trackage Owner shall make no retirement, withdrawal, elimination or disposal of
any part of the Subject Trackage which would permanently or materially impair the usefulness of the
Subject Trackage to Subject Trackage User without the consent of the Subject Trackage User.



     9.6 Direction and Control of Management and Operation. The management and operation of
the Subject Trackage shall be under the exclusive direction and control of Subject Trackage Owner.
Subject Trackage Owner shall have the authority to change the management and operations on and over
the Subject Trackage as in its judgment may be necessary, expedient, or proper for the operations
thereof herein intended, provided, however, that Subject Trackage Owner must conform to the
operating conditions established by the Service Standards Committee under Clause Twelve hereof.



     9.7 Derailment and Accidents Involving Hazardous Materials.



     (a) In case of any incident, accident, derailment, or vehicle striking or being struck by
Equipment, involving Equipment operated by a Party hereto carrying Hazardous Materials or
pollutants shall occur on the Subject Trackage, any report required by federal, state or local
authorities shall be the responsibility of such Party. Each Party shall advise the other Party
immediately of the occurrence of a derailment involving Equipment operated by the Party carrying
Hazardous Materials.



47









 





NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A 
CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND 
HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS
 PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.




     (b) Unless otherwise agreed by the Parties, Subject Trackage Owner shall undertake any
Response Action (as defined below) in accordance with all federal, state, or local regulatory
requirements necessitated by a release of Hazardous Materials on Subject Trackage Owner’s
right-of-way underlying the Subject Trackage from Equipment operated by either Party hereto upon
the occurrence of a derailment. Subject Trackage User shall have data or a representative
available at the scene of any derailment involving Equipment operated by it to provide information
concerning the characteristics of Hazardous Materials released.



     (c) If following a derailment upon the Subject Trackage, Hazardous Materials must be
transferred to undamaged Cars or other vehicles, unless otherwise agreed by the Parties, the Party
whose Equipment was involved in such derailment shall perform the transfer; provided, however, that
if the Hazardous Materials are in damaged Cars of a Train of Subject Trackage User that are
blocking the Subject Trackage, Subject Trackage Owner shall transfer the Hazardous Materials;
provided further that transfers of Hazardous Materials by Subject Trackage User shall only be
conducted after being authorized by Subject Trackage Owner.



     (d) [****] Subject Trackage Owner and its contractors shall have full, unrestricted and
unconditional access to the Subject Trackage for the purpose of completing or engaging in a
Response Action for which Subject Trackage Owner has any responsibility or, at Subject Trackage
Owner’s option, a Response Action which Subject Trackage Owner has undertaken should Subject
Trackage User fail to diligently pursue and complete such Response Action to the satisfaction of
Subject Trackage Owner; provided, however, that any Response Action (i) shall be undertaken and
completed pursuant to a work plan (including a schedule) submitted to the other Party for its
review and, in the case of Subject Trackage Owner, approval, and (ii) shall not unreasonably, in
terms of duration or otherwise, restrict the other Party’s use of the Subject Trackage. Either
Party’s completion of any of the other Party’s obligations hereunder shall not be deemed a release
of such obligations under this Agreement. Subject Trackage Owner shall have the right, but not the
obligation, to conduct reasonable inspections of any Response Action of Subject Trackage User and
Subject Trackage User shall provide Subject Trackage Owner all information requested by Subject
Trackage Owner regarding any Response Action of Subject Trackage User or any Environmental Claims
for which Subject Trackage User is responsible.



     9.8 Additional Rules on Management and Operation of Subject Trackage.



     (a) Subject Trackage Owner shall employ all persons necessary to construct, operate, maintain,
repair, and renew the Subject Trackage. Subject Trackage Owner shall be bound to use only
reasonable and customary care, skill, and diligence in the construction, operation, maintenance,
repair, and renewal of the Subject Trackage and in managing same.



48









 





NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A 
CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND
 HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS 
PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.




     (b) Subject Trackage shall be kept in a state of reasonable repair and reasonably
suitable for the combined requirements of the Parties and of such other railroad companies as
Subject Trackage Owner has heretofore admitted or may hereafter admit to use of the Subject
Trackage and, at least, in the conditions that are necessary for compliance with the Applicable
Framework. In the event there are conditions from time to time which require speed restrictions
with respect to any location on the tracks comprised in the Subject Trackage, Subject Trackage
Owner shall, with reasonable promptness, notify Subject Trackage User of such speed restrictions
and repair such conditions so as to permit the removal of such speed restrictions.



     (c) Subject Trackage User shall not, by reason of Subject Trackage Owner’s performing or
failing or neglecting to perform any construction, operation, maintenance, repair, renewal, or
management of the Subject Trackage, have or make against Subject Trackage Owner any claim or demand
for any loss, damage, destruction, injury, or death whatsoever resulting therefrom. Subject
Trackage User shall be given the same advance notice of maintenance plans and schedules as is
provided to Subject Trackage Owner’s personnel.



     (d) All officers, agents, and employees of Subject Trackage Owner engaged in the management,
operation, and maintenance of the Subject Trackage shall perform their duties in a fair, impartial,
and just manner.



     (e) Subject Trackage Owner may occasionally substitute tracks for those delineated in this
Agreement for use by Subject Trackage User; provided that no such substitution may be made without
the consent of Subject Trackage User, which consent will not be unreasonably withheld. When any
tracks which are not part of the Subject Trackage are used as provided herein, the Agreement shall
govern for purposes of direction and control and liability as if all movement had been made over
the Subject Trackage.



     (f) [****]



     9.9 Training of Subject Trackage User’s Crews.



     (a) Subject Trackage Owner has the right to administer to all employees of Subject Trackage
User engaged in or connected with the operations of Subject Trackage User on or along the Subject
Trackage, periodic examination on the rules of Subject Trackage Owner related to the Subject
Trackage, provided, with respect to such examinations that, upon request of Subject
Trackage User, Subject Trackage Owner shall qualify one or more of Subject Trackage User’s
supervisory officers on said rules and such supervisory officer or officers so qualified shall
examine all employees of Subject Trackage User engaged in or connected with Subject Trackage User’s
operations on or along the Subject Trackage.



     (b) Pending qualification of the crews of Subject Trackage User, Subject Trackage Owner shall
furnish a pilot or pilots, at the expense of Subject Trackage User, as deemed necessary by Subject
Trackage Owner to assist in operating trains of Subject Trackage User over



49









 




the Subject Trackage. In addition to all other qualification requirements, crews of Subject
Trackage User shall not be deemed qualified to operate on the Subject Trackage until such crew
members have completed five (5) trips over the Subject Trackage under the supervision of User’s
qualified supervisory officers or Owner-supplied pilot or pilots.




     (c) If any employee of Subject Trackage User shall neglect, refuse, or fail to abide by
Subject Trackage Owner’s rules, instructions, and restrictions governing the operation on or along
the Subject Trackage, such employee shall, upon written request of Subject Trackage Owner, be
prohibited by Subject Trackage User from working on the Subject Trackage. If either Party shall
deem it necessary to conduct an investigation to establish such neglect, refusal, or failure on the
part of any employee of Subject Trackage User, then upon such notice presented in writing, Subject
Trackage Owner and Subject Trackage User shall promptly conduct a joint investigation in which all
parties concerned shall participate and bear the expense for its officers, counsel, witnesses, and
employees. Notice of such investigations to employees of Subject Trackage User shall be given by
Subject Trackage User’s officers, and such investigation shall be conducted in accordance with the
terms and conditions of the collective bargaining agreements between Subject Trackage User and its
employees. If, in the judgment of Subject Trackage Owner, the result of such investigation
warrants, such employee shall, upon written request of Subject Trackage Owner, be withdrawn by
Subject Trackage User from service on the Subject Trackage, and Subject Trackage User shall release
and indemnify Subject Trackage Owner from and against any and all claims and expenses because of
such withdrawal.



     (d) If the disciplinary action is appealed by an employee of Subject Trackage User to any
tribunal lawfully created to adjudicate such cases, and if the decision of such tribunal sustains
the employee’s position, such employee shall not thereafter be barred from service on the Subject
Trackage by reason of such occurrence.



     (e) In the event the relevant union and/or any of the Subject Employees asserts any claim,
action, suit or any other form of complaint against Subject Trackage User (and/or its respective
directors, officers, advisors, agents, employees, or Affiliates), and with respect to discipline
imposed under this Section 9.9, Subject Trackage Owner hereby covenants and agrees to indemnify,
defend and hold Subject Trackage User (including its respective directors, officers, advisors,
agents, employees, or subsidiary or Affiliates) harmless of any such claim, action, suit or
complaint filed by such union and/or any of the Subject Employees; provided that Subject Trackage
User shall have the right (but not the obligation) to (i) choose legal advisors to handle the
dispute and determine the strategy of such proceedings, whose fees shall be borne by Subject
Trackage Owner; and/or (ii) at its sole discretion, make the relevant payment to the claiming
person(s) and then be reimbursed of such payment by Subject Trackage Owner.



     9.10 Repairs on Dragged Equipment; Removal of Bad Ordered Tractive Equipment.



     (a) If the Dragged Equipment of Subject Trackage User is bad ordered en route on the tracks
subject to switching services or interline services rights and it is necessary that it be set out,
such bad ordered Dragged Equipment shall, after being promptly repaired, be promptly picked up and
delivered to Subject Trackage User. Applicable AAR rules shall be applied to determining
appropriate billing and payment procedures.




50











 





     NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.



     (b) Unless otherwise agreed, Subject Trackage Owner shall, at Subject Trackage User’s
sole cost and expense, furnish the required labor and material and perform light repairs to make
such bad ordered Dragged Equipment safe for movement. In the case of such repairs by Subject
Trackage Owner for Dragged Equipment in Subject Trackage User’s account, billing therefor shall be
in accordance with the Interchange Rules in effect on the date of performance of the repairs.
Subject Trackage Owner shall then prepare and submit billing directly to and collect from the
Dragged Equipment owner for Dragged Equipment owner responsibility items as determined under said
Interchange Rules, and Subject Trackage Owner shall prepare and submit billing directly to and
collect from Subject Trackage User for line responsibility items as determined under said
Interchange Rules.



     (c) Subject Trackage Owner shall also submit billing to and collect from Subject Trackage User
any charges for repair to Dragged Equipment that is Subject Trackage User responsibility items as
determined under said Interchange Rules should said Dragged Equipment owner refuse or otherwise
fail to make payment therefor following reasonable good faith efforts by Subject Trackage Owner to
collect such charges for repair of Dragged Equipment from the owner thereof.



     (d) If Tractive Equipment operated by one Party is bad ordered en route while on the Trackage
of the other Party and it is necessary that such Tractive Equipment be set out, such bad ordered
Tractive Equipment may be dragged by the Party on whose Trackage the Tractive Equipment became bad
ordered to whichever point of Interchange with the other Party is deemed convenient by the operator
of the Trackage on which the Tractive Equipment became disabled. Absent other circumstances, this
point of Interchange shall be the point of Interchange between the Parties which is closest to the
location at which the Tractive Equipment became bad ordered. The Party dragging the other Party’s
bad ordered Tractive Equipment is entitled to recover from the Party whose Tractive Equipment is
being dragged any reasonable costs and expenses incurred in connection with the dragging or removal
of the bad ordered Tractive Equipment, and shall not be bound to make any form of repairs thereto.



     Clause Ten. Dispatch of Trains; Traffic Control Centers; Non- Discrimination.



     10.1 Traffic Control Centers. Subject Trackage Owner shall operate the Subject
Trackage by means of duly-staffed traffic control centers that remain operational for 24 (twenty
four) hours each day of the year, that handle the traffic flowing over the Subject Trackage in an
orderly and timely fashion and in accordance with the Applicable Framework.



     10.2 [****]



51









 





     NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.



     10.3 Subject Trackage Use Notice. Before each occasion on which Subject Trackage
User intends to make use of Trackage Rights granted hereunder, Subject Trackage User shall send a
written notice (which may be done by electronic means) to Subject Trackage Owner containing all of
the information listed in Exhibit F hereto and any other information relevant to the safety
of movement of Subject Trackage User’s Train.



     10.4 Non- Discrimination.



     (a) Without limiting the generality of the foregoing, Subject Trackage Owner shall be
responsible for the dispatch of all Trains circulating on the Subject Trackage, with the
understanding that, all Users, including Subject Trackage User, will be treated on a
non-discriminatory basis.



     (b) For purposes of this Agreement, non-discriminatory treatment includes the obligation of
the Subject Trackage Owner to treat Subject Trackage User-related traffic under at least the same
terms and conditions (operative and otherwise) as it treats its own.



     10.5 Uninterrupted flow of Traffic and other Items. The Subject Trackage Owner shall
carry out all traffic management and regulation functions necessary to ensure the safe and
uninterrupted flow of traffic and minimal traffic delays on the Subject Trackage, which shall
include without limitation:




	 	(i)	 	managing the traffic from its traffic operations centers, which shall remain
staffed and operational 24 (twenty four) hours every day of the year;
	 
	 	(ii)	 	providing recovery service and ambulance service 24 (twenty four) hours every
day of the year;
	 
	 	(iii)	 	coordinating with police and emergency services authorities with respect to
traffic control and with other Governmental Authorities, as and when needed;
	 
	 	(iv)	 	carrying out such functions in a non-discriminatory manner, as provided in
paragraph 10.4 above; and
	 
	 	(v)	 	coordinate sharing of Automatic Equipment Identification (AEI) reader
information as needed to ensure safe and efficient operation.





Clause
Eleven. Billing.





	 	11.1	 	Billing Forms.
	 
	 	(a)	 	[****]




52









 











     NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.



     (b) For charges other than trackage rights, switching services and interline rates,
billing shall be prepared according to the rules, additives and equipment rental rates as published
by Subject Trackage Owner.



     (c) Each Party (“Party of the First Part”) shall pay, [****], to the other Party (“Party of
the Second Part”), at the Office of the Treasurer of the Party of the Second Part or at such other
location as the Party of the Second Part may from time to time designate, all the compensation and
charges of every name and nature which in and by this Agreement Party of the First Part is required
to pay. Each such payment, other than payments for those charges which are paid in whole or in
part by offset as provided in Section 11.6 below, [****].



     (d) Bills shall contain a statement of the amount due on account of the expenses incurred and
services rendered during the billing period. Value Added Tax shall be stated separately from the
amounts of the corresponding expenses and services.



     11.2 [****] The failure of a Party to provide such notice to the Party paying the rate shall
not be deemed a breach of this Agreement and shall not in any manner affect or delay the taking
effect of the automatically adjusted rates provided for by this Agreement.



     11.3 [****]



     11.4 Disputed Bills. Errors or disputed items in any bill shall not be deemed a valid
excuse for delaying payment, and payments shall be made subject to subsequent adjustment,
provided, however, that:




	 	(i)	 	[****], or (b) if in connection with a project for which a roadway completion
report is required, after the last day of the calendar month in which the roadway
completion report is made covering such project, with retirements and additions being
reflected as appropriate adjustments to valuation bases retroactive up to 3 (three)
years from date of billing, or (c) [****]
	 
	 	(ii)	 	should the amount of any bill rendered by one Party to the other for trackage
rights fees due under Clause Five, or for interline rate divisions due under Clause
Six, or for switching service fees due under Clause Seven [****] and the receiving
Party’s good faith belief as to the amount due. If said representatives are able to
resolve the Parties’ differences about the bill at their meeting, the Parties shall
make an appropriate reconciliation and supplementary billing or credit notes, [****].
For any items not resolved by the representatives about the bill at their meeting, the
matter shall be referred to the Dispute Resolution procedures established by Clause
Nineteen.




53









 











     NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.



     11.5 Inspections and Audits. So much of the books, accounts, and records of each
Party hereto as are related to the subject matter of this Agreement shall at all reasonable times
be open to inspection by the authorized representatives and agents of the Parties hereto. All
books, accounts, and records shall be maintained to furnish readily full information for each item.



     11.6 [****]



     11.7 Payment Failure; Additional Remedy. Should Subject Trackage User fail pay when
due payments for use of Subject Trackage of the other Party which Subject Trackage User is
obligated to pay under this Agreement, or fail in any other respect to perform as required under
this Agreement, [****], whereupon the Subject Trackage User shall surrender to Subject Trackage
Owner all said Subject Trackage and shall have no claim or demand upon it, by suit at law or
otherwise, on account of said exclusion, and Subject Trackage User shall, upon written demand of
Subject Trackage Owner, pursue and obtain any required regulatory filings to discontinue use of the
Subject Trackage; provided that failure to make any disputed payment which is the subject of
litigation between the Parties shall not be deemed, pending the decision in such arbitration or
litigation, a cause for forfeiture hereunder.



     11.8 Incremental Rates in case of Certain Defaults.



     (a) The Parties agree that in the event any of them fails to comply with the provisions of
this Agreement indicated in the following paragraph (which are listed as the only cases triggering
an incremental rate and not merely as examples), the rates payable to the non-defaulting Party
shall be incrementally increased as provided in the following paragraph.



     (b) [****]



     (c) The remedies set forth above with respect to defaults by the Parties are not exclusive and
the enforcement thereof shall not prevent the non-defaulting Party from seeking specific
enforcement of the terms and conditions of this Agreement and/or recovering any applicable damages
and lost profits to which is entitled for the breach of the other party.



     Clause
Twelve.  Service Standards Committee and Transition Period.



     12.1 The Committee.



     (a) A service standards committee (the “Committee”), shall be established, and shall be
responsible for: (i) establishing and updating operating plans as outlined in Section 12.3 (a) and
(d) — Transition Period below; (ii) establishing rules or standards as appropriate to ensure
equitable and non-discriminatory treatment, appropriate maintenance and efficient use of the
Subject Trackage; (iii) such other functions attributed to the Committee under other agreements
entered into by Kansas and the Ferromex Parties.



54









 





     (b) The Committee shall meet on a regular basis not less often than monthly during the
Transition Period and thereafter not less often than every 3 (three) months during the first year
of operation under this Agreement, and thereafter within 45 (forty-five) days (unless otherwise
mutually agreed) following the date that the Party to this Agreement that requests the meeting
delivers to the other such party 45 (forty-five) days’ written notice of its desire to meet to
review the overall performance of the rights provided for under this Agreement, to resolve
conflicts and consider other relevant matters within the responsibility of the Committee as defined
in this Clause Twelve.



     (c) If the Committee fails to reach an agreement within 10 (ten) business days of beginning
its meeting, with respect to any matter within the scope of its responsibilities as outlined
herein, the matter shall be referred to the Director of Operations of Kansas and to the Chief
Operating Officer of Ferromex that are (i) providing and (ii) using the particular service
(including but not limited to the trackage rights provided for in Clause Five hereof and the
switching services provided for in Clause Seven hereof) under discussion for further negotiation.



     (d) The Director of Operations of Kansas and the Chief Operating Officer of Ferromex shall
negotiate for an additional 10 (ten) business days following the date of referral described in
Section 12.1(c) immediately above in an effort to resolve their disagreement.



     (e) The Committee shall consider technological improvements that may foster more rapid and
consistent service in the Subject Trackage. Changes in service standards or decisions on capital
investments flowing from such consideration shall be negotiated in good faith and subject to the
terms of this Agreement.



     (f) The Parties agree that Kansas shall appoint 3 (three) individuals and that Ferromex shall
appoint 3 (three) individuals to the Committee. Appointments and replacements of the individuals
shall be made at any time by sending a letter to Ferromex or Kansas, as applicable, indicating the
names of the corresponding appointees or their replacements.



     12.2 Limitations of the Committee.



     (a) The Parties hereby acknowledge that the Committee is created with the intent of
facilitating the implementation of the terms and conditions of this Agreement and the other
agreements providing trackage, haulage or switching rights entered into by Kansas and the Ferromex
Parties. The Committee does not have the power to change the provisions of either this Agreement
or the other agreements entered into by Kansas and the Ferromex Parties.



     (b) No action or omission by the Committee shall be deemed as a waiver, stay or amendment to
the rights and obligations of the Parties hereunder and/or the other agreements entered into by
Kansas and the Ferromex Parties.



     12.3 Transition Period.



     (a) For a period that begins on the execution of this Agreement and ends 180 (one hundred and
eighty) days thereafter (the “Transition Period”), the Parties agree to work together in order to:
(i) implement the provisions of Sections 5.4, 5.5, 5.6 and 5.7 and Clauses Eight, Nine and Ten
under safe and efficient operation conditions, and in full compliance with



55









 




the Applicable Framework; and (ii) attempt to solve all operational processes that are not
critical for the implementation of the trackage rights that are provided for in this Agreement.




     (b) If during the Transition Period there are any matters referred to in paragraph (a) above
that cannot be amicably solved by the Parties, either Party may submit such matter to the
Committee. Upon such submission, the matter will be addressed by the Committee and if no Agreement
can be reached by the Committee or by the Director of Operations of Kansas and the Chief Operating
Officer of Ferromex, either Party may commence the dispute resolution process set forth in Clause
Eighteen hereof and eventually enforce its rights under applicable law.



     (c) The Parties hereby acknowledge that the Transition Period is created with the intent of
facilitating the implementation of the terms and conditions of this Agreement and the other
agreements entered into by Kansas and the Ferromex Parties. Therefore, communications and other
work materials prepared in the context of the Transition Period will not constitute: (i) a change
or amendment of the provisions of either this Agreement or the other agreements entered into by
Kansas and the Ferromex Parties; (ii) a waiver, stay or amendment to the rights and obligations of
the Parties hereunder and/or the other agreements entered into by Kansas and the Ferromex Parties;
nor (iii) a justification to engage in discriminatory treatment.




	 	(d)	 	The Committee will be responsible for the following:
	 
	 	(i)	 	Develop a written procedure for requesting and granting access to the rights
and services provided for in this Agreement (See Exhibit F);
	 
	 	(ii)	 	Define processes for monitoring compliance with requirements for non —
discriminatory treatment, equal access, and restrictions to access;
	 
	 	(iii)	 	Define operational points of Interchange where applicable;
	 
	 	(iv)	 	Define requirements for electronic exchange of information;
	 
	 	(v)	 	Define processes for notification regarding changes to operating rules,
instructions, and temporary and permanent restrictions, use of alternate routes, and
planned maintenance outages;
	 
	 	(vi)	 	Define processes for notification of proposed physical changes to the Subject
Trackage;
	 
	 	(vii)	 	Define processes for notification of proposed changes to scheduled traffic;
	 
	 	(viii)	 	Define processes for notification and handling of bad orders, delays en route,
derailments, and requests for pilots;
	 
	 	(ix)	 	Define requirements and processes regarding training and qualifications of
crews to conduct trackage rights operations;




56









 











     NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.



     (x) Define processes for other operational considerations covered under this Agreement
not identified in the above listing; and



     (xi) Consideration and review of proposals for construction of additional facilities
contemplated under this Agreement.



     Clause
Thirteen.   Other Obligations.



     13.1 Public Statements.



     (a) The Parties shall work together to prepare a joint document for transmission to the media
in which the termination of the Settlement Controversies and this Agreement shall be informed. In
case the Parties are unable to agree on the contents of such a document, this Agreement, shall
continue in full force and effect.



     (b) [****]; in the understanding that in case any of the Parties discloses this document to
any third party or Governmental Authority, said disclosure would not be deemed as a breach of this
Agreement and the Party making the disclosure would not be liable to the Party for having made said
disclosure.



     13.2 Best Efforts.



     (a) The Parties agree to carry out any and all acts that are reasonably necessary to defend
the validity and legal force of this Agreement.



     (b) In such respect, the Parties agree to carry out any acts necessary in order for the
provisions of this Agreement to become fully effective. Likewise, they agree to not carry out any
act or action that may impede that the provisions of this Agreement to become fully effective.



     (c) Without limiting the above, the Parties to this Agreement shall enter into and deliver any
additional documents and perform any subsequent acts as are necessary or convenient to carry out
the purposes of this Agreement in a more effective way.



     (d) The Parties agree to modify any provision of this Agreement that is found to be or becomes
contrary to the applicable legal framework in order to make it compatible with such framework,
provided that the purpose and sense of the original provision shall be maintained.



     (e) Each of the Parties agrees to carry out all necessary and/or desirable acts in order for
the other Parties, respectively, to be able perform any acts or actions required to be performed
hereunder and give full force and effect to the provisions of this Agreement.



57









 





     Clause
Fourteen.  Term, Termination.



     14.1 General Term.



     (a) This Agreement shall become effective on the date hereof and remain valid until either the
term of the Ferromex Concession Title or the Kansas Concession Title set forth in Representations
I.(c) and II.(c), respectively, expire, unless the Parties mutually agree to renew the Agreement
for an additional term.



     (b) Lapse or termination of this Agreement shall not relieve or release either Party hereto
from any obligations assumed (including but not limited to obligations to defend, indemnify, save
and hold harmless) or from any liability which may have arisen or been incurred by either Party
under the terms of this Agreement prior to the termination hereof.



     14.2 Events of Termination.



     (a) Notwithstanding the provisions of Section 14.1 above, this Agreement may be terminated
before its stipulated term if one of the Parties transfers, directly or indirectly, its concession
under the respective Concession Title (or the rights related thereto), in which case the other
Party may terminate this Agreement giving prior written notice within 6 (six) months subsequent to
the date in which it has knowledge of such transfer, without responsibility for any of the Parties.
For the avoidance of doubt, a change of control over Kansas, or its Affiliates and controlling
companies, does not constitute a cause for termination of this Agreement.



     (b) The assignment of economic rights under its respective Concession Title to a
securitization vehicle or to a special purpose trust or vehicle for purposes of security or payment
source of any form of financing or refinancing received by either Party from financial institutions
or the securities’ market, shall not be subject to the restrictions set forth in the preceding
paragraph.



     14.3 Dispossession. In the event Subject Trackage Owner shall be involuntarily
dispossessed, including threat of condemnation by competent Governmental Authority, of the right to
operate upon and maintain any portion of the Subject Trackage, and provided Subject Trackage Owner
shall by such involuntary dispossession lose the right to operate its own Trains on the Subject
Trackage, Subject Trackage Owner shall have no obligation hereunder to provide such tracks of which
Subject Trackage Owner has been dispossessed for Subject Trackage User’s use, and Subject Trackage
User shall have and shall make no claim of any kind, legal or otherwise, against Subject Trackage
Owner for failure to provide such tracks for Subject Trackage User’s use.



     14.4 Abandonment.



     (a) Under the terms hereinafter stated, and to the extent that Subject Trackage Owner may
lawfully do so, Subject Trackage Owner reserves to itself the exclusive right, exercisable at any
time during the life of the Agreement without concurrence of Subject Trackage User, to elect to
abandon all or any part of the Subject Trackage by giving 6 (six) months’ prior written notice to
Subject Trackage User of its intention to do so.



58









 





     (b) If, at the time of such election, Subject Trackage User is the only party (other than
Subject Trackage Owner) having the right to use the Subject Trackage via trackage, haulage or any
other access rights, Subject Trackage Owner shall, concurrently with its notice of abandonment, and
to the extent it is legally able to do so, give to Subject Trackage User the option to acquire said
Subject Trackage or the part or parts thereof to be abandoned. Subject Trackage User shall have 3
(three) months from the date of receipt of Subject Trackage Owner’s notice to exercise its option
to acquire the segment of the Subject Trackage to be abandoned and shall evidence the exercise of
its option by giving Subject Trackage Owner written notice thereof. Thereafter, Subject Trackage
User shall immediately make appropriate application to secure all necessary authorizations from
Governmental Authorities for such acquisition. For purpose of this paragraph, it shall be deemed
that Kansas is the only Party (other than Subject Trackage Owner) having the right to use the
Subject Trackage via trackage, haulage or any other access rights if the other persons with said
class of rights are Ferrosur and/or any other Affiliate of Ferromex.



     (c) If Subject Trackage User fails to exercise the option herein granted within the time and
in the manner above specified, Subject Trackage Owner may forthwith proceed free of all obligation
to Subject Trackage User to make appropriate application to secure all necessary authorizations
from Governmental Authorities, if any may be required, for such abandonment. In such event,
Subject Trackage User shall not oppose any such abandonment directly or indirectly. Subject
Trackage User agrees that at such time it will concurrently make application for all necessary
authorizations from Governmental Authorities for abandonment of its right to operate over the
Subject Trackage and pursue such application to conclusion, if such application is requested by the
applicable Governmental Authority for the abandonment to be effective. The Agreement shall
terminate as to the section of Subject Trackage so abandoned upon the effective date of such
approval by a Governmental Authority.



     14.5 Effects of the Termination.



     (a) Clauses that Survive. The provisions of this Agreement that for their nature must
be maintained in force even when this Agreement has been terminated, such as those contained in
Clauses Three and Eleven, among others, shall be maintained in force for the time corresponding to
their nature or until their purpose is fulfilled or its object exhausted.



     (b) No Extinction of Liability. The termination or expiration of this Agreement will
not affect or impair the rights or obligations of either Party arising under this Agreement prior
to such termination or expiration.



     (c) Transition Period after Termination. In any case, whatever the event of
termination of this Agreement, and notwithstanding anything else provided therein, the Parties
agree to make their best efforts in order to continue applying the terms and conditions set forth
in this Agreement, for the term agreed to by the Parties, but that may not be in any case less than
180 (one hundred and eighty) calendar days, counted as from the termination of this Agreement.



59









 





     NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.



     (d) Certain Rules on Termination. Upon termination of this Agreement, or any
partial termination, as the case may be, however the same may occur, Subject Trackage User shall be
released from any and all manner of obligations and shall be deemed to have forever relinquished,
abandoned, surrendered, and renounced any and all right possessed by Subject Trackage User to
operate over that part of the Subject Trackage to which such termination applied, and as to such
part, Subject Trackage User shall forever release and discharge Subject Trackage Owner of and from
any and all manner of obligations, claims, demands, causes of action, or suits which Subject
Trackage User might have, or which might subsequently accrue to Subject Trackage User growing out
of or in any manner connected with, directly or indirectly, the contractual obligations of Subject
Trackage Owner under this Agreement, in all events provided, however, the aforesaid relinquishment,
abandonment, surrender, renunciation, release, and discharge of Subject Trackage User shall not in
any case affect any of the rights and obligations of either Subject Trackage Owner or Subject
Trackage User which may have accrued, or liabilities accrued or otherwise, which may have arisen
prior to such termination or partial termination. Upon any termination, Subject Trackage Owner
will remove from Subject Trackage Owner’s right-of-way any connecting track, and any exclusive
facility of Subject Trackage User, at Subject Trackage User’s expense with salvage to be delivered
to and retained by Subject Trackage User. Upon any partial termination of the Agreement, however
the same may occur, the terms and conditions hereof shall continue and remain in full force and
effect for the balance of the Subject Trackage.



     Clause Fifteen. Liability. Except as provided in the preceding Clauses hereof with
respect to specific liability issues, the following rules shall govern the liability of the Parties
with respect to incidents occurring during the actions authorized by this Agreement:



     15.1 Trackage Rights. For Loss, injury, costs or Damage resulting during the exercise
of trackage rights:



     (a) [****]



     (b) [****]



     (c) Subject Trackage User accepts the Subject Trackage in the condition in which it is found
when Subject Trackage User uses the Subject Trackage. Subject Trackage User agrees that it will
not seek from Subject Trackage Owner indemnification for any Loss, cost, or Damage Subject Trackage
User or any third party incurs that arises in whole or in part from track conditions and without
the presence at the location of the damage of a Train of the Subject Trackage Owner.



60









 





     NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.



          (d) It is understood and agreed that a number of vehicular and pedestrian crossings of
the Subject Trackage presently exist, or may be constructed. Subject Trackage User agrees to
accept all vehicular and pedestrian crossings in whatever condition they may be during the term of
the Agreement and will not assert any claim, demand, or cause of action against Subject Trackage
Owner and will hold Subject Trackage Owner harmless from any claim, demand, or cause of action
arising out of any vehicular or pedestrian crossing accident on the Subject Trackage in which the
Train(s) of Subject Trackage User only is involved.



          (e) Except as otherwise provided in the foregoing paragraphs (a) through (d), each Party shall
bear all liability for injury, loss and damage to:




	 	  (i)	  	its Sole Employees and Sole Property;
	 
	 	  (ii)	  	freight and freight cars in its sole care, custody and control, including
Subject Trackage User with respect to security over its Railroad Equipment while in use
of the trackage rights;
	 
	 	  (iii)	  	patrons, invitees, and others on its Equipment, or on or about the Subject
Property in transaction of business only with such Party, regardless of the cause of
such Loss or Damage.





          (f) Except as otherwise provided in the foregoing paragraphs (a) through (e), each Party shall
share liability for injury, Loss and Damage to Subject Employees and to Subject Trackage occurring
as a result of the operation of Railroad Equipment by one or more of the Parties (including the
mere presence of a Party’s Railroad Equipment on the Subject Trackage), whether or not such
operation was negligent, as follows:




	 	  (i)	  	in the case of injury, Loss, cost or Damage occurring as a result of the
operation of Equipment by only one Party, solely by the Party that operated the
Equipment; and
	 
	 	  (ii)	  	in the case of injury, Loss or Damage occurring as a result of the operation of
Equipment by more than one Party, in direct proportion to the respective fault of each
Party in causing the loss.





          (g) Loss or Damage to third parties, Subject Employees or Subject Property involving only
Subject Employees and Subject Trackage, or occurring in such a way that it cannot be determined how
such Loss or Damage came about shall be apportioned equally among all of the Parties to this
Agreement.



          15.2 [****]



          15.3 Litigation and Settlements.



61









 





     (a) Each Party hereto shall have the right to settle, or cause to be settled for it, all
claims for damages for which such Party shall be liable under the provisions of this Clause Fifteen
and to defend or cause to be defended all suits for recovery of any such Damages.



     (b) In case a suit shall be commenced against either Party hereto for or on account of Damages
for which the other Party hereto may be solely or jointly liable under the provisions of this
Clause Fifteen, the Party so sued shall give notice to such other Party of the pendency of such
suit and thereupon such other Party may assume or join in the defense of such suit.



     (c) In the event that more than one of the Parties shall be liable hereunder for any Damages
and the same shall be settled by a voluntary payment of money or other valuable consideration by
one of the Parties so jointly liable therefor, release from liability shall be taken for and in the
name of all Parties so liable.



     (d) In the event of any future settlement in excess of US$10,000.00 (ten thousand Dollars of
the United States of America), the settling Party shall notify the other Party prior to settlement.
Failure of the settling Party to so notify the other Party prior to settlement shall not relieve
the other Party of their obligation under the settlement agreement, so long as the settling Party’s
failure to notify did not prejudice the other Party and then only to the extent of such prejudice.



     (e) If a judgment shall be recovered against and satisfied by one Party involving a liability
which should under the Agreement be borne entirely or participated in by the other Party, then all
expenses of whatsoever nature, including costs and fees connected with such judgment and with the
prosecution of the suit upon which it was based, shall be settled between the Parties in strict
accordance with the provisions of the Agreement and the Party against which such judgment shall
have been recovered shall be promptly reimbursed by the other Party to the extent to which the
latter is indebted.



     15.4 Labor.



     (a) Each Party shall be responsible for all labor issues involving its own employees and their
unions that arise from the operation and maintenance of its corresponding Subject Trackage.



     (b) Subject Trackage Owner shall be the sole employer (patrón) for any and all legal purposes
of all Subject Employees operating or maintaining the Subject Trackage except for those operating
Subject Trackage User’s Trains or other Subject Trackage User Railroad Equipment, and shall be
solely responsible for the payment of wages, social security quotas, worker’s housing quotas,
bonuses and any other forms of payments or employment benefits towards the Relevant Personnel.



62









 





     NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL
TREATMENT REQUEST, HAVE BEEN OMITTED FROM THIS EXHIBIT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION AS PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.



     (c) Each Party shall be responsible for any labor claims of, and shall bear the cost of
employee protection payable to, its own employees, and the employees of its respective Affiliates,
to the extent resulting from the entry into or operation of this Agreement. However, in the event
the Parties agree that Subject Trackage Owner should retain employees or provide additional
employees for the sole benefit of Subject Trackage User, the Parties shall enter into a separate
written agreement providing that Subject Trackage User shall bear all cost and expense for any such
retained or additional employees, including, without limitation, all cost and expense associated
with labor protection payments which are made by Subject Trackage Owner and which would not have
been incurred had such retention or provision of employees for the sole benefit of Subject Trackage
User not been required.



     15.5 [****]



     Clause Sixteen. Governmental Approval.



     16.1 Responsibilities of Subject Trackage User. Subject Trackage User shall, at its
own cost and expense, initiate by appropriate application or petition and thereafter diligently
pursue proceedings for the procurement of all necessary consent, approval, exemption or authority
from any Governmental Authority for the sanction that may be required for the works and activities
associated with the operations to be carried on by Subject Trackage User hereunder.



     16.2 Cooperation of Subject Trackage Owner. Subject Trackage Owner, at its expense,
shall assist and support said application or petition and will furnish such information and
execute, deliver, and file such instrument or instruments in writing as may be necessary or
appropriate to obtain such governmental consent, approval, exemption or authority. Subject
Trackage User and Subject Trackage Owner agree to cooperate fully to procure all such necessary
consent, approval, exemption or authority.



     Clause
Seventeen.  Miscellaneous.



     17.1 Agreement between the Parties, Language.



     (a) This Agreement constitutes the complete agreement between the Parties with respect to the
matter hereof and supersede all former negotiations and agreements, either oral or written.



     (b) This Agreement is executed in English. Within the 30 (thirty) calendar days following the
execution of this Agreement, the Parties will work jointly in producing a mutually-acceptable
translation of the Agreement into Spanish. After said translation has been approved and signed by
both Parties, such approved Spanish version shall be controlling. If the Parties do not reach an
agreement on the Spanish version, this Agreement executed in English will remain in full force and
effect.




63












 





     17.2 Amendments. This Agreement may not be amended or altered except by means of an
instrument signed by both Parties through their respective attorneys-in-fact, duly authorized.



     17.3 Partial Invalidity.



     (a) This Agreement is subject to all applicable rules issued by the Governmental Authorities
and nothing herein is intended to violate any such law.



     (b) If any clause or provision of this Agreement is held to be invalid or unenforceable by any
Governmental Authority of competent jurisdiction, the Parties will negotiate in good faith to amend
this Agreement to replace the Clause or provision held invalid or unenforceable with a Clause or
remedy which as closely as legally possible restores the meaning and financial benefits to the
Parties of the Clause found invalid or unenforceable. If the Parties are unable to reach an
agreement on such a clause, the appropriate replacement clause or remedy shall be determined by
arbitration under the Rules of Arbitration of the International Chamber of Commerce. There shall
be 3 (three) arbitrators, the first nominated by the initiating Party in the request for
arbitration, the second nominated by the other Party within 30 (thirty) days of receipt of the
request for arbitration, and the third, who shall act as presiding arbitrator, nominated by the two
Parties within 30 (thirty) days of the appointment of the second arbitrator. If any arbitrators
are not nominated within these time periods, the President of the ICC International Court of
Arbitration shall make the appointment(s). The arbitrators shall be of Mexican nationality. The
language of the arbitration shall be Spanish and the place of arbitration shall be Mexico City,
UMS.



     17.4 Assignment of Rights and Obligations.



     (a) The Parties agree to not assign or transfer, in whole or in part, the rights and/or
obligations derived from this Agreement without prior written authorization of the other Party to
such effect.



     (b) The assignment of economic rights under their respective Concession Title to a
securitization vehicle or to a special purpose trust or vehicle for purposes of security or payment
source of any form of financing or refinancing received by either Party from financial institutions
or the securities’ market, shall not be subject to the restrictions set forth in the preceding
paragraph.



     17.5 No Damages or Losses from Controversies. Each of the Parties hereby represents
that it has not sustained Damages or Losses in the execution of this Agreement or in the context of
the Settlement Controversies.



     17.6 Taxes. Each of the Parties shall be responsible for the taxes accrued at its
charge regarding this Agreement.



     17.7 Notices. Any notification or other communications required or permitted in terms
hereof shall be made in writing and will be effective on the business day immediately following the
date on which they were received by the corresponding Party. The notifications performed in
accordance with the provisions of this Clause, may be delivered personally, or by telex, fax,



64









 




telegram, courier or first class certified mail, and addressed to the corresponding Party, to
the following addresses:



If to Kansas:

Kansas City Southern de México, S.A. de C.V.

Montes Urales No. 625,

Colonia Lomas de Chapultepec,

C.P. 11000 México, D.F.

Tel: 9178-5676

Fax: 9178-5600

Att’n: Presidente y Representante Ejecutivo (or equivalent)

eMail: jzozaya@kcsouthern.com.mx



If to Ferromex:

Ferrocarril Mexicano, S.A. de C.V.

Bosque de Ciruelos, No. 99,

Colonia Bosques de las Lomas,

C.P. 11700; México, D.F.,

Tel: 5246-3700

Att’n: Director General Adjunto de Administración y Finanzas (or equivalent)

eMail: oornelas@ferromex.com.mx

               fjurado@ferromex.com.mx




     Kansas and the Ferromex Parties shall each acknowledge, in a writing sent by overnight courier
service to the Party giving notice at the address stated in this Section 17.7, receipt of each
notice given by the said Party under this Agreement. Such written acknowledgement of receipt of a
notice given under this Agreement shall be sent to the Party giving the notice within 5 (five)
calendar days of the receiving Party’s receipt of the notice.



     Clause Eighteen. Dispute Resolution.



     (a) The Parties shall seek amicably to settle all disputes arising out of or in connection
with this Agreement (each a “Dispute”) by negotiation. If, within 10 (ten) days after written
notice by either Party to the other of the existence of a Dispute (a “Dispute Notice”), the Parties
do not resolve such Dispute, then the Dispute shall be referred to the President of Kansas and to
the Chief Executive Officer of Ferromex for further negotiation.



     (b) If the Parties do not resolve their Dispute within 20 (twenty) days of the Dispute Notice
has been delivered to the other Party, then the Dispute may be subject to the corresponding dispute
resolution mechanisms under applicable law, including filing any form of claims, requests, notices
and/or suits before the Ministry and/or the competent courts.



     Clause Nineteen. Jurisdiction and Applicable Law. For the interpretation and execution
of this Agreement, the Parties submit themselves to the jurisdiction of the laws and competent
federal courts of Mexico, Federal District, hereby waiving any other jurisdiction that they may be
entitled to by reason of their domiciles or otherwise; provided that solely for



65









 




purposes of determining a replacement clause under Section 17.3 the Parties shall be subject
to arbitration as contemplated under said Section.



THIS AGREEMENT is executed in Mexico, Federal District, on February 9, 2010.




[signatures follow]







66









 








	 	 	 

	FERROCARRIL MEXICANO, S.A. DE C.V.

	 	 
	 
	 	 
	By: /s/ Alfredo Casar Pérez



	 	 
	      Alfredo Casar Pérez
	 	 
	      Title: Legal Representative
	 	 
	 
	 	 
	By: /s/ Lorenzo Reyes Retana Márquez Padilla



	 	 
	      Lorenzo Reyes Retana Márquez Padilla
	 	 
	      Title: Legal Representative
	 	 
	 
	 	 
	KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V.
	 	 
	 
	 	 
	By: /s/ José Guillermo Zozaya Délano



	 	 
	      José Guillermo Zozaya Délano
	 	 
	      Title: Legal Representative
	 	 






[SIGNATURE PAGE TO THE TRACKAGE RIGHTS, SWITCHING AND INTERLINE SETTLEMENT AGREEMENT DATED

FEBRUARY 9, 2010]








67









 








[English Translation of Original Spanish Document]




Exhibit C




Settlement Procedures




I.
Monterrey (N-1).




	 	 	 
	Overview	 	 
	Principal Document:

	 	August 7, 2002: Te Ministry issued official
communication no. 120.-859/2002 on Ferromex’s request






	 	 	 
	Process	 	 
	Legal Action:

	 	Parallel administrative annulment procedures (demandas de nulidad),
commenced by Kansas and Ferromex independently, against the Ministry’s
Resolution, subsequently consolidated into a single process.
	 
	 	 
	File Number:

	 	16422/02-17-09-1/ac1/1113/03-PL-06-04-AD-QC (as consolidated).
	 
	 	 
	Initial Filing:

	 	September 24, 2002 (Kansas) and October 10, 2002 (Ferromex).
	 
	 	 
	Forum:

	 	High Chambers of the Federal Court of Fiscal and Administrative Justice.
	 
	 	 
	Plaintiffs:

	 	Kansas and Ferromex, respectively.
	 
	 	 
	Main Defendant:

	 	The Ministry.
	 
	 	 
	Third Parties:

	 	Ferromex and Kansas, respectively.
	 
	 	 
	First Annulment
Decision:

	 	February 16, 2005: The High Chambers of the Federal Court of Fiscal and
Administrative Justice ruled on both lawsuits.
	 
	 	 
	Amparo 399/2005

	 	January 31, 2006: Ruling from the 5th Collegiate Court for
Administrative Matters in the First Circuit.
	 
	 	 
	Second Annulment
Decision:

	 	March 13, 2006: Ruling from the High Chambers of the Federal Court of
Fiscal and Administrative Justice.
	 
	 	 
	Amparo 351/2006

	 	February 28, 2007: Ruling from the 5th Collegiate Court for
Administrative Matters in the First Circuit.
	 
	Third Annulment
Decision:

	 	June 11, 2007: Ruling from the High Chambers of the Federal Court of
Fiscal and Administrative Justice.
	 
	 	 
	Amparo 284/2007

	 	April 30, 2008: Ruling from the 5th Collegiate Court for Administrative
Matters in the First Circuit.






 









 






	 	 	 
	Process	 	 
	Fourth Annulment
Decision:

	 	September 17, 2008: Ruling from the High Chambers of the Federal Court
of Fiscal and Administrative Justice.
	 
	 	 
	Amparo 83/2009
(Kansas) and
84/2009 (Ferromex )

	 	June 29, 2009: The Collegiate Court ruled granting the amparo and
giving specific instructions to the High Chambers of the Federal Court
of Fiscal and Administrative Justice.






II.
Guadalajara (DPL-1).




	 	 	 
	Overview	 	 
	Principal Document:

	 	July 23, 2004: The
Ministry issued official communication 120.-829/2004.






	 	 	 
	Principal Process	 	 
	Legal Action:

	 	Parallel administrative annulment procedures (demandas de nulidad) commenced by
Ferromex and by Kansas independently against the Ministry’s resolution,
subsequently consolidated into a single process.
	 
	 	 
	File Number:

	 	26236/04-17-08-5 (as consolidated).
	 
	 	 
	Initial Filing:

	 	September 2, 2004 (Ferromex) and October 6, 2004 (Kansas).
	 
	 	 
	Forum:

	 	Federal Court of Fiscal and Administrative Justice, 8th Chamber (as consolidated).
	 
	 	 
	Plaintiffs:

	 	Ferromex and Kansas, respectively.
	 
	 	 
	Main Defendant:

	 	The Ministry.
	 
	 	 
	Third Parties:

	 	Kansas and Ferromex, respectively.
	 
	 	 
	Status:

	 	November 7, 2006: The 8th Chamber of the Federal Court of Fiscal and
Administrative Justice requested to the High Chambers of that Court to attract
this matter.






69









 






III. Altamira.




	 	 	 
	Overview	 	 
	Principal
Document:

	 	August 6, 2007: The
Ministry issued resolution 4.3.-1066/2007.






	 	 	 
	Principal Process	 	 
	Legal Action:

	 	Administrative annulment procedure commenced by Kansas against
the Ministry’s resolution 

4.3.-1066/2007.
	 
	 	 
	File Number:

	 	25300/07-17-07-8.
	 
	 	 
	Initial Filing:

	 	September 5, 2007.
	 
	 	 
	Forum:

	 	Federal Court of Fiscal and Administrative Justice, 7th Chamber.
	 
	 	 
	Plaintiff:

	 	Kansas.
	 
	 	 
	Main Defendant:

	 	The Ministry.
	 
	 	 
	Third Party:

	 	Ferromex.
	 
	 	 
	Status:

	 	No definitive resolution has been issued.





IV. Amendment to Ferromex’s Concession Title (Aguascalientes and Guadalajara)




	 	 	 
	Overview	 	 
	Principal Document:

	 	September 19, 2006: Amendment of Ferromex’s Concession
Title. The corresponding decree was published in the
Federal Official Gazette on October 18, 2006.






	 	 	 
	Principal Process	 	 
	Legal Action:

	 	Administrative annulment procedure commenced by Kansas against the
Ministry’s resolution of September 19, 2006 to modify Ferromex’s
Concession Title.
	 
	 	 
	File Number:

	 	1458/07-17-07-5.
	 
	 	 
	Initial Filing:

	 	January 12, 2007.
	 
	 	 
	Forum:

	 	High Chambers of the Federal Court of Fiscal and Administrative Justice.
	 
	 	 
	Plaintiff:

	 	Kansas.






70









 






	 	 	 
	Principal Process	 	 
	Main Defendant:

	 	The Ministry.
	 
	 	 
	Third Party:

	 	Ferromex.
	 
	 	 
	Status:

	 	No definitive resolution has been issued.
	 
	 	 
	Note:

	 	In terms of section 2.7(e) of the Agreement, the Parties hereby
specifically and conclusively agree that the inclusion of the
litigation involving amendment of Ferromex’s Concession Title in this
Exhibit shall not be deemed as an acceptance on behalf of Kansas of the
procedure adopted by the Federal Government of the UMS and/or by
Ferromex to amend the Ferromex Concession Title, nor that such is the
appropriate procedure to modify the Ferromex Concession Title in the
future. Kansas hereby reserves its right to challenge any such future
modifications made to the Concession Title of any of the Ferromex
Parties, and Ferromex hereby agrees that it will never cite to the
Federal Government of the UMS the settlement in the Agreement or this
Exhibit of the litigation involving amendment of Ferromex’s Concession
Title as any agreement by Kansas for the method of making that
amendment. The Ministry acknowledges Ferromex’s acknowledgement herein
that the settlement in this Agreement or this Exhibit shall not serve
as precedent for determining the appropriate procedures for
modification of either Party’s Concession Title in the future.







71











 





	 	 	 

	[English Translation of Original Spanish Document]






EXHIBIT D




Kansas’ Complaints Before the Ministry of Public Service




	•	 	Complaints under file number Q.U.- 015/2008 before the Secretaria de la Función Pública.
	 
	•	 	Amparo Trail under file 1318/2009, before the First Administrative District Judge




72









 











	 	 	 

	[English Translation of Original Spanish Document]






Exhibit E




Additional Termination Acts






73









 








	 	 	 

	 

	 	INFRAESTRUCTURA Y TRANSPORTES FERROVIARIOS, S.A. DE C.V. E
INFRAESTRUCTURA AND TRANSPORTES MÉXICO, S.A. DE C.V.
	 
	 	 
	 

	 	ADMINISTRATIVE APPEAL.
	 
	 	 
	 

	 	FILE No. RA 21-2006 AND ACCUMULATED






PLENARY COMMISSIONERS OF THE FEDERAL ANTITRUST COMMISSION.




          EDGAR AGUILETA GUTIÉRREZ, in my capacity as legal representative of KANSAS CITY SOUTHERN DE
MÉXICO, S.A. DE C.V., complainant in the administrative procedure CNT-132-2005 and accumulated,
which capacity has been duly recognized to me under this administrative procedure, I hereby
respectfully appear to state the following:




          I hereby appear before the Members of this Commission, to state under oath, that the Company
which I represent has no intention to continue with its efforts in connection with the
concentration notified by the companies mentioned in the heading, as such is in the best interest
of my principal.




     My principal has knowledge that on June 22, 2006, a ruling of “no authorization” was issued in
the original procedure, which was appealed by the notifying companies; and that the administrative
appeal under such procedure through a ruling dated November 8, 2006, which is still under a further
appeal.



          In connection with the above, my client has no further legal interest despite having been part
in the original procedure filed under file CNT-132-2005 and accumulated and which was processed
before the Federal Antitrust Commission, nor in the file mentioned in the heading.




          In view of the foregoing, I hereby respectfully request to this Commissionaires to acknowledge
the terms contained in this document, and of having stated what is said herein for all legal
purposes.




      





EDGAR AGUILETA GUTIÉRREZ




Mexico, Federal District, February 9, 2010.






74









 








	 	 	 

	 

	 	INFRAESTRUCTURA Y TRANSPORTES FERROVIARIOS, S.A. DE C.V. AND
INFRAESTRUCTURA AND TRANSPORTES MÉXICO, S.A. DE C.V.
	 
	 	 
	 

	 	CONCENTRATION
	 
	 	 
	 

	 	FILE No. CNT-132-2005 AND ACCUMULATED.






PLENARY COMMISSIONERS OF THE FEDERAL ANTITRUST COMMISSION.




          EDGAR AGUILETA GUTIÉRREZ, in my capacity as legal representative of KANSAS CITY SOUTHERN DE
MÉXICO, S.A. DE C.V., as complainant in the administrative procedure referred to in the heading,
which capacity has been duly recognized to me under this administrative procedure, I hereby
respectfully appear to state the following:




          I hereby appear before the Members of this Commission, to state under oath, that the Company
which I represent has no intention to continue with its efforts in connection with the
concentration notified by the companies mentioned in the heading, as such is in the best interest
of my principal.




     My principal has knowledge that on June 22, 2006, a ruling of “no authorization” was issued in
the original procedure, which was appealed by the notifying companies; and that the administrative
appeal number RA-21-2006 and accumulated through a ruling dated November 8, 2006, which is still
under a further appeal.



          In connection with the above, my client has no further interest despite having been a party in
the original procedure conducted under file number set forth in the heading and which was processed
before the Federal Antitrust Commission.




          In view of the foregoing, I hereby respectfully request to this Commissionaires to acknowledge
the terms contained in this document, and of having stated what is said herein for all legal
purposes.




 






EDGAR AGUILETA GUTIÉRREZ




Mexico, Federal District, February 9, 2010.






75









 








	 	 	 

	 

	 	AMPARO TRIAL NO. 887/2009-III
	 
	 	 
	 

	 	PLAINTIFF: GRUPO MÉXICO, SOCIEDAD ANÓNIMA BURSÁTIL DE CAPITAL
VARIABLE AND OTHERS.
	 
	 	 
	 

	 	MAIN DOCKET






SIXTH DISTRICT JUDGE IN ADMINISTRATIVE MATTERS

IN THE FEDERAL DISTRICT.




          EDGAR AGUILETA GUTIÉRREZ, in my capacity as legal representative of KANSAS CITY SOUTHERN DE
MÉXICO, S.A. DE C.V., as third party in interest in the amparo trial indicated in the heading,
which capacity has been duly recognized to me under this administrative procedure, I hereby
respectfully appear to state the following:




     I hereby appear before your Honor, to state under oath, that the Company which I represent has
no intention to continue participating as third party in interest in this amparo trial as such is
in the best interest of my principal, because it has entered into a Settlement F dated as of
February 9, 2010.



          In view of the foregoing, my client has no interest in the survival of the contested actions
in the amparo trial in which it participates, without any prejudice to the fact that my client has
been a party in the original procedure filed under administrative files IO-02-2006 and RA-08-2009
and accumulated, processed before the Federal Antitrust Commission.




          In virtue of the foregoing, I hereby respectfully request to your Honor to acknowledge the
terms contained in this document, and of having stated what is said herein for all legal purposes.




 






EDGAR AGUILETA GUTIÉRREZ




Mexico, Federal District, February 9, 2010.






76









 








	 	 	 

	 

	 	APPEAL R.A. 330/2009
	 
	 	 
	 

	 	AMPARO TRIAL NO. 887/2009-III
	 
	 	 
	 

	 	PLAINTIFF AND APPELLANT: GRUPO MÉXICO, SOCIEDAD ANÓNIMA
BURSÁTIL DE CAPITAL VARIABLE AND OTHERS.






MAGISTRATES OF THE THIRTEENTH COLLIGATE COURT FOR ADMINISTRATIVE MATTERS IN THE FIRST CIRCUIT.




          EDGAR AGUILETA GUTIÉRREZ, in my capacity as legal representative of KANSAS CITY SOUTHERN DE
MÉXICO, S.A. DE C.V., as third party in interest in the amparo trial indicated in the heading,
which capacity has been duly recognized to me under this administrative procedure, I hereby
respectfully appear to state the following:




     I hereby appear before these Magistrates, to state under oath, that the Company which I
represent has no intention to continue participating as third party in interest in the amparo trial
identified in the heading of this brief, nor in its corresponding appeal, as such is in the best
interest of my principal, because it has entered into a Settlement Agreement dated as of February
9, 2010.



          In view of the foregoing, my client has no interest in the survival of the ruling appealed on
June 15, 2009, nor the survival of the contested actions in the corresponding amparo trial, without
any prejudice to the fact that my client has been a party in the original procedure filed under
administrative files IO-02-2006 y RA-08-2009 and accumulated, processed before the Federal
Antitrust Commission.




          In virtue of the foregoing, I hereby respectfully request to these Magistrates to acknowledge
the terms contained in this document, and of having stated what is said herein for all legal
purposes.




 






EDGAR AGUILETA GUTIÉRREZ




Mexico, Federal District, February 9, 2010.






77









 








	 	 	 

	 

	 	APPEAL R.A. 63/2010
	 
	 	 
	 

	 	AMPARO TRIAL NUM. 1095/2008-II
	 
	 	 
	 

	 	PLAINTIFF AND APPELLANT: SINCA INBURSA, SOCIEDAD ANÓNIMA DE
CAPITAL VARIABLE, SOCIEDAD DE INVERSIÓN DE CAPITALES.






MAGISTRATES OF THE FIRST COLLIGATE COURT OF THE AUXILIARY CENTER OF THE FIRST REGION.




          EDGAR AGUILETA GUTIÉRREZ, in my capacity as legal representative of KANSAS CITY SOUTHERN DE
MÉXICO, S.A. DE C.V., as a third party in interest in the amparo trial indicated in the heading,
which capacity has been duly recognized to me under this administrative procedure, I hereby
respectfully appear to state the following:




          I hereby appear before these Magistrates, to state under oath, that the Company which I
represent has no intention to continue participating as third party in interest in the amparo trial
identified in the heading of this brief, nor in its corresponding appeal, as such is in the best
interest of my principal, because it has entered into a Settlement Agreement dated as of February
9, 2010.




          In view of the foregoing, my client has no interest in the survival of the ruling appealed on
August 21, 2009, nor in the survival of the contested actions in such amparo trial, without any
prejudice to the fact that my client has been a party in the original procedure filed under
administrative file CNT-132-2005 and accumulated, processed before the Federal Antitrust
Commission.




          In virtue of the foregoing, I hereby respectfully request to these Magistrates to acknowledge
the terms contained in this document, and of having stated what is said herein for all legal
purposes.




 






EDGAR AGUILETA GUTIÉRREZ




Mexico, Federal District, February 9, 2010.






78









 








	 	 	 

	 

	 	INFRAESTRUCTURA Y TRANSPORTES FERROVIARIOS, S.A. DE C.V. AND
INFRAESTRUCTURA AND TRANSPORTES MÉXICO, S.A. DE C.V.
	 
	 	 
	 

	 	FILE No. 3825/07-17-05-8






MAGISTRATES OF THE HIGH CHAMBER OF THE FEDERAL COURT OF FISCAL AND ADMINISTRATIVE JUSTICE.




          EDGAR AGUILETA GUTIÉRREZ, in my capacity as legal representative of KANSAS CITY SOUTHERN DE
MÉXICO, S.A. DE C.V., third party in interest in the administrative trial indicated in the heading,
which capacity has been duly recognized to me under this administrative procedure, I hereby
respectfully appear to state the following:




     I hereby appear before these Magistrates, to state under oath, that the Company which I
represent has no intention to continue participating as third party in interest in the amparo trial
identified in the heading of this brief, because it has entered into a Settlement Agreement dated
as of February 9, 2010.



          In view of the foregoing, my client has no further interest in the survival of the ruling
appealed on November 8, 2005, notwithstanding the fact that my client has been a party in the
original procedure field under the administrative procedure number CNT-132-2005 and accumulated,
processed before the Federal Antitrust Commission.




          In virtue of the foregoing, I hereby respectfully request to your these Magistrates to
acknowledge the terms contained in this document, and of having stated what is said herein for all
legal purposes.




 






EDGAR AGUILETA GUTIÉRREZ




Mexico, Federal District, February 9, 2010.






79









 








	 	 	 

	 

	 	FILE NO. IO-02-2006.
	 
	 	 
	 

	 	







PLENARY COMMISSIONERS OF THE FEDERAL ANTITRUST COMMISSION.




          EDGAR AGUILETA GUTIÉRREZ, in my capacity as legal representative of KANSAS CITY SOUTHERN DE
MÉXICO, S.A. DE C.V., complainant in the administrative procedure indicated in the heading, which
capacity has been duly recognized to me under this administrative procedure, I hereby respectfully
appear to state the following:




     I hereby appear before the Members of this Commission, to state under oath, that the Company
which I represent has no intention to continue with its efforts in connection with the
administrative procedure indicated in the heading, as such is in the best interest of my principal.



          My principal has knowledge that on January 22, 2009, a ruling was issued in the investigation
procedure for absolute monopolistic practices, which was then contested by means of several
administrative appeals conducted under files RA-08-2009 and accumulated and were both resolved by a
ruling dated June 9, 2009, which is still under a further appeal.




     In view of the foregoing, my client has no further interest despite having been part within
the original procedure filed under the file number indicated on the heading and which was processed
by the Federal Antitrust Commission.



          In virtue of the foregoing, I hereby respectfully request to the Commissionaires to
acknowledge the terms contained in this document, and of having stated what is said herein for all
legal purposes.




 






EDGAR AGUILETA GUTIÉRREZ




Mexico, Federal District, February 9, 2010.






80









 








	 	 	 

	 

	 	RA. 08-2009 AND ACCUMULATED.
	 
	 	 
	 

	 	






PLENARY COMMISSIONERS OF THE FEDERAL ANTITRUST COMMISSION.




          EDGAR AGUILETA GUTIÉRREZ, in my capacity as legal representative of KANSAS CITY SOUTHERN DE
MÉXICO, S.A. DE C.V., complainant in the administrative procedure indicated in the heading, which
capacity has been duly recognized to me under the original administrative procedure conducted under
file number IO-02-2006, I hereby respectfully appear to state as follows:




          I hereby appear before the Members of this Commission, to state under oath, that the Company
which I represent has no intention to continue with its efforts in connection with the
administrative procedure indicated in the heading, as such is in the best interest of my principal.




     My principal has knowledge that on January 22, 2009, a ruling was issued in the investigation
procedure for absolute monopolistic practices conducted under file IO-02-2006, which was then
contested by means of several administrative appeals conducted under files indicated in the
heading, and were both resolved by a ruling dated June 9, 2009, which is still under a further
appeal.



     In view of the foregoing, my client has no further interest despite having been part within
the original procedure IO-02-2006 that was processed before the Federal Antitrust Commission, as
well as the file indicated in the heading.



          In virtue of the foregoing, I hereby respectfully request to the Commissionaires to
acknowledge the terms contained in this document, and of having stated what is said herein for all
legal purposes.




 






EDGAR AGUILETA GUTIÉRREZ




Mexico, Federal District, February 9, 2010.






81









 








GENERAL OFFICE OF RATES, RAILWAY

AND MULTIMODAL TRANSPORTATION OF

THE MINISTRY OF COMMUNICATIONS

AND TRANSPORT.




	 	 	 

	 

	 	KANSAS CITY SOUTHERN DE MÉXICO, S.A.
	 
	 	 
	 

	 	DE C.V.
	 
	 	 
	 

	 	Ref.: Official Communication No. 120.-859/2002.
	 
	 	 
	 

	 	Dismissal with prejudice.






     EDGAR AGUILETA GUTIÉRREZ, in my capacity as legal representative of the company indicated in
the heading of this brief, which capacity has been duly recognized to me under this administrative
procedure, I hereby respectfully appear to state the following:



     That Article 36 of the Railroad Service Law sets forth, that the concessionaries exercising
their freedom of contract may agree among them, switching and trackage rights, by means of which
they may share certain trackage. For a better understanding, hereinbelow a transcription of the
provisions of such article:




Article 36. The concessionaries may agree among themselves the
switching rights and trackage rights, by means of which they can
share a particular trackage. The concessionaire of the trackage will
be responsible for the supply of the railroad equipment and the
conservation and maintenance of the trackage.




The Ministry may establish, in the bidding guidelines and in the
respective concession titles, that for specific sections they shall
grant each other certain switching rights and trackage rights. When
the concessionaries can not reach an agreement within the 90
calendar days following the date on which the negotiations started,
the Ministry, after hearing the parties, will determine the
conditions and considerations according to which such rights shall
be granted.




The concessionaires shall submit to the Ministry a copy of the
agreements executed in terms of this article.



     As evidenced in the foregoing article, the railroad regulations privileges the freedom of
contract of the parties in order for them to determine the rates of the switching and trackage
rights that shall be collected among the concessionaires when sharing a particular trackage.



82









 





     Furthermore, as it is of the knowledge of this Office, on February 9, 2010 my principal and
the company FERROCARRIL MEXICANO, S.A. DE C.V., executed a settlement agreement in terms of article
36 of the Railroad Service Law.



     This being so, and as it is in the best interest of my principal and according to the
provisions set forth in article 36 of the Railroad Service Law, I hereby FORMALLY REQUEST THE
DISMISSAL WITH PREJUDICE form this administrative procedure and therefore request to this Authority
the closure of the records of the administrative file, in view of the fact that the parties have
entered into an agreement that does not affect the rule of law, or the social interest and as
evidenced, the subject matter thereof may be settled among the parties.



     In virtue of the foregoing,



TO THIS GENERAL OFFICE OF RATES, RAILWAY AND MULTIMODAL TRANSPORTATION OF THE MINISTRY OF
COMMUNICATIONS AND TRANSPORT, I hereby respectfully request:




     FIRST.- To acknowledge receipt of this brief, in my capacity as legal representative of the
company KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V., requesting the closure of the file of this
administrative procedure.



     SECOND.- After concluding all administrative requirements, order the termination of this
administrative procedure.



     THIRD.- Issue, at the expense of my principal, a certified copy of the ruling under which the
termination of this administrative procedure is ordered.



I HEREBY DECLARE.




México, Federal District, February 9, 2010.



EDGAR AGUILETA GUTIÉRREZ





83











 





GENERAL OFFICE OF RATES, RAILWAY

 AND MULTIMODAL
TRANSPORTATION OF

 THE MINISTRY OF COMMUNICATIONS 
AND
TRANSPORT.




	 	 	 

	 

	 	FERROCARRIL MEXICANO, S.A. DE C.V.
	 

	 	Ref.: Official Communication No 120.-859/2002.
	 

	 	Acceptance of dismissal with prejudice.






     LAURA HERNÁNDEZ GONZÁLEZ, in my capacity as legal representative of FERROCARRIL MEXICANO, S.A.
DE C.V., capacity which is duly assented in the records of this administrative procedure, I hereby
respectfully appear to state as follows:



     That through this brief and pursuant to the provisions of the agreement dated February 9, 2010
executed among my principal and KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V., I hereby express the
consent of my principal in connection with the termination of the administrative procedure
requested by KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V.



     In virtue of the foregoing,



TO THE GENERAL OFFICE OF RATES, RAILWAY AND MULTIMODAL TRANSPORTATION OF THE MINISTRY OF
COMMUNICATIONS AND TRANSPORT I hereby respectfully request:




     FIRST.- To acknowledge receipt of this brief, in my capacity as legal representative of the
company FERROCARRIL MEXICANO, S.A. DE C.V., requesting the closure of the file of this
administrative procedure.



     SECOND.- After concluding all administrative requirements, order the termination of this
administrative procedure.



     THIRD.- Issue, at the expense of my principal, a certified copy of the ruling under which the
termination of this administrative procedure is ordered.



I
HEREBY DECLARE.

México, Federal District, February 9, 2010.




LAURA HERNÁNDEZ GONZÁLEZ




84









 








GENERAL OFFICE OF RATES, RAILWAY 

AND MULTIMODAL
TRANSPORTATION OF 

THE MINISTRY OF COMMUNICATIONS 

AND
TRANSPORT.




	 	 	 

	 

	 	FERROCARRIL MEXICANO, S.A. DE C.V.
	 

	 	Ref.: Official Communication No. 120.-859/2002.
	 

	 	Dismissal with prejudice.






     LAURA HERNÁNDEZ GONZÁLEZ, in my capacity as legal representative of the company identified in
the heading of this brief, which capacity has been duly recognized to me under this administrative
procedure, I hereby respectfully appear to state the following:



     That Article 36 of the Railroad Service Law sets forth, that the concessionaries exercising
their freedom of contract may agree among them, switching and trackage rights, by means of which
they may share certain trackage. For a better understanding, hereinbelow a transcription of the
provisions of such article:




Article 36. The concessionaries may agree among themselves the
switching rights and trackage rights, by means of which they can
share a particular trackage. The concessionaire of the trackage will
be responsible for the supply of the railroad equipment and the
conservation and maintenance of the trackage.




The Ministry may establish, in the bidding guidelines and in the
respective concession titles, that for specific sections they shall
grant each other certain switching rights and trackage rights. When
the concessionaries can not reach an agreement within the 90
calendar days following the date on which the negotiations started,
the Ministry, after hearing the parties, will determine the
conditions and considerations according to which such rights shall
be granted.




The concessionaires shall submit to the Ministry a copy of the
agreements executed in terms of this article.



     As evidenced in the foregoing article, the railroad regulations privileges the freedom of
contract of the parties in order for them to determine the rates of the switching and trackage
rights that shall be collected among the concessionaires when sharing a particular trackage.



85









 





     Furthermore, as it is of the knowledge of this Office, on February 9, 2010 my principal and
the company FERROCARRIL MEXICANO, S.A. DE C.V., executed a settlement agreement in terms of article
36 of the Railroad Service Law.



     This being so, and as it is in the best interest of my principal and according to the
provisions set forth in article 36 of the Railroad Service Law, I hereby FORMALLY REQUEST THE
DISMISSAL WITH PREJUDICE form this administrative procedure and therefore request to this Authority
the closure of the records of the administrative file, in view of the fact that the parties have
entered into an agreement that does not affect the rule of law, or the social interest and as
evidenced, the subject matter thereof may be settled among the parties.



     In virtue of the foregoing,



TO THIS GENERAL OFFICE OF RATES, RAILWAY AND MULTIMODAL TRANSPORTATION OF THE MINISTRY OF
COMMUNICATIONS AND TRANSPORT, I hereby respectfully request:




     FIRST.- To acknowledge receipt of this brief, in my capacity as legal representative of the
company FERROCARRIL MEXICANO, S.A. DE C.V., requesting the closure of the file of this
administrative procedure.



     SECOND.- After concluding all administrative requirements, order the termination of this
administrative procedure.



     THIRD.- Issue, at the expense of my principal, a certified copy of the ruling under which the
termination of this administrative procedure is ordered.



I
HEREBY DECLARE.

México, Federal District, February 9, 2010.




LAURA HERNÁNDEZ GONZÁLEZ




86









 








GENERAL OFFICE OF RATES, RAILWAY 

AND MULTIMODAL
TRANSPORTATION OF 

THE MINISTRY OF COMMUNICATIONS 

AND
TRANSPORT.




	 	 	 

	 

	 	KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V.
	 

	 	Ref.: Official Communication No. 120.-859/2002.
	 

	 	Acceptance of dismissal with prejudice.






     EDGAR AGUILETA GUTIÉRREZ, in my capacity as legal representative of KANSAS CITY SOUTHERN DE
MÉXICO, S.A. DE C.V., capacity which is duly assented in the records of this administrative
procedure, I hereby respectfully appear to state as follows:



     That through this brief and pursuant to the provisions of the agreement dated February 9, 2010
executed among my principal and FERROCARRIL MEXCIANO, S.A. DE C.V., I hereby express the consent of
my principal in connection with the termination of the administrative procedure requested by
FERROCARRIL MEXCIANO, S.A. DE C.V.



     In virtue of the foregoing,



TO THIS GENERAL OFFICE OF RATES, RAILWAY AND MULTIMODAL TRANSPORTATION OF THE MINISTRY OF
COMMUNICATIONS AND TRANSPORT, I respectfully request:




     FIRST.- To acknowledge receipt of this brief, in my capacity as legal representative of the
company KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V. requesting the closure of the file of this
administrative procedure.



     SECOND.- After concluding all administrative requirements, order the termination of this
administrative procedure.



     THIRD.- Issue, at the expense of my principal, a certified copy of the ruling under which the
termination of this administrative procedure is ordered.



I
HEREBY DECLARE.

México, Federal District, February 9, 2010.




EDGAR AGUILETA GUTIÉRREZ




87









 








GENERAL OFFICE OF RATES, RAILWAY 

AND MULTIMODAL
TRANSPORTATION OF 

THE MINISTRY OF COMMUNICATIONS 

AND
TRANSPORT.




	 	 	 

	 

	 	KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V.
	 

	 	Ref.: Official Communication No. 120.-829/2004.
	 

	 	Dismissal with prejudice.






     EDGAR AGUILETA GUTIÉRREZ, in my capacity as legal representative of the company indicated in
the heading of this brief, which capacity has been duly recognized to me under this administrative
procedure, I hereby respectfully appear to state the following:



     That Article 36 of the Railroad Service Law sets forth, that the concessionaries exercising
their freedom of contract may agree among them, switching and trackage rights, by means of which
they may share certain trackage. For a better understanding, hereinbelow a transcription of the
provisions of such article:




Article 36. The concessionaries may agree among themselves the
switching rights and trackage rights, by means of which they can
share a particular trackage. The concessionaire of the trackage will
be responsible for the supply of the railroad equipment and the
conservation and maintenance of the trackage.




The Ministry may establish, in the bidding guidelines and in the
respective concession titles, that for specific sections they shall
grant each other certain switching rights and trackage rights. When
the concessionaries can not reach an agreement within the 90
calendar days following the date on which the negotiations started,
the Ministry, after hearing the parties, will determine the
conditions and considerations according to which such rights shall
be granted.




The concessionaires shall submit to the Ministry a copy of the
agreements executed in terms of this article.



     As evidenced in the foregoing article, the railroad regulations privileges the freedom of
contract of the parties in order for them to determine the rates of the switching and trackage
rights that shall be collected among the concessionaires when sharing a particular trackage.



88









 





     Furthermore, as it is of the knowledge of this Office, on February 9, 2010 my principal and
the company FERROCARRIL MEXICANO, S.A. DE C.V., executed a settlement agreement in terms of article
36 of the Railroad Service Law.



     This being so, and as it is in the best interest of my principal and according to the
provisions set forth in article 36 of the Railroad Service Law, I hereby FORMALLY REQUEST THE
DISMISSAL WITH PREJUDICE form this administrative procedure and therefore request to this Authority
the closure of the records of the administrative file, in view of the fact that the parties have
entered into an agreement that does not affect the rule of law, or the social interest and as
evidenced, the subject matter thereof may be settled among the parties.



     In virtue of the foregoing,



TO THIS GENERAL OFFICE OF RATES, RAILWAY AND MULTIMODAL TRANSPORTATION OF THE MINISTRY OF
COMMUNICATIONS AND TRANSPORT, I hereby respectfully request:




     FIRST.- To acknowledge receipt of this brief, in my capacity as legal representative of the
company KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V., requesting the closure of the file of this
administrative procedure.



     SECOND.- After concluding all administrative requirements, order the termination of this
administrative procedure.



     THIRD.- Issue, at the expense of my principal, a certified copy of the ruling under which the
termination of this administrative procedure is ordered.



I
HEREBY DECLARE.

México, Federal District, February 9, 2010.




EDGAR AGUILETA GUTIÉRREZ




89









 








GENERAL OFFICE OF RATES, RAILWAY 

AND MULTIMODAL
TRANSPORTATION OF THE 

MINISTRY OF COMMUNICATIONS 

AND
TRANSPORT.




	 	 	 

	 

	 	FERROCARRIL MEXICANO, S.A. DE C.V.
	 

	 	Ref.: Official Communication No. 120.-829/2002.
	 

	 	Acceptance of dismissal with prejudice.






     LAURA HERNÁNDEZ GONZÁLEZ, in my capacity as legal representative of FERROCARRIL MEXICANO, S.A.
DE C.V., capacity which is duly assented in the records of this administrative procedure, I hereby
respectfully appear to state as follows:



     That through this brief and pursuant to the provisions of the agreement dated February 9, 2010
executed among my principal and KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V., I hereby express the
consent of my principal in connection with the termination of the administrative procedure
requested by KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V.



     In virtue of the foregoing,



TO THIS GENERAL OFFICE OF RATES, RAILWAY AND MULTIMODAL TRANSPORTATION OF THE MINISTRY OF
COMMUNICATIONS AND TRANSPORT, I respectfully request:




     FIRST.- To acknowledge receipt of this brief, in my capacity as legal representative of the
company FERROCARRIL MEXICANO, S.A. DE C.V., requesting the closure of the file of this
administrative procedure.



     SECOND.- After concluding all administrative requirements, order the termination of this
administrative procedure.



     THIRD.- Issue, at the expense of my principal, a certified copy of the ruling under which the
termination of this administrative procedure is ordered.



I
HEREBY DECLARE.

México, Federal District, February 9, 2010.




LAURA HERNÁNDEZ GONZÁLEZ



90









 





GENERAL OFFICE OF RATES, RAILWAY 

AND MULTIMODAL
TRANSPORTATION OF 

THE MINISTRY OF COMMUNICATIONS 

AND
TRANSPORT.




	 	 	 

	 

	 	FERROCARRIL MEXICANO, S.A. DE C.V.
	 

	 	Ref.: Official Communication No. 120.-829/2004.
	 

	 	Dismissal with prejudice.






     LAURA HERNÁNDEZ GONZÁLEZ, in my capacity as legal representative of the company identified in
the heading of this brief, which capacity has been duly recognized to me under this administrative
procedure, I hereby respectfully appear to state the following:



     That Article 36 of the Railroad Service Law sets forth, that the concessionaries exercising
their freedom of contract may agree among them, switching and trackage rights, by means of which
they may share certain trackage. For a better understanding, hereinbelow a transcription of the
provisions of such article:




Article 36. The concessionaries may agree among themselves the
switching rights and trackage rights, by means of which they can
share a particular trackage. The concessionaire of the trackage will
be responsible for the supply of the railroad equipment and the
conservation and maintenance of the trackage.




The Ministry may establish, in the bidding guidelines and in the
respective concession titles, that for specific sections they shall
grant each other certain switching rights and trackage rights. When
the concessionaries can not reach an agreement within the 90
calendar days following the date on which the negotiations started,
the Ministry, after hearing the parties, will determine the
conditions and considerations according to which such rights shall
be granted.




The concessionaires shall submit to the Ministry a copy of the
agreements executed in terms of this article.



     As evidenced in the foregoing article, the railroad regulations privileges the freedom of
contract of the parties in order for them to determine the rates of the switching and trackage
rights that shall be collected among the concessionaires when sharing a particular trackage.



91









 





     Furthermore, as it is of the knowledge of this Office, on February 9, 2010 my principal and
the company FERROCARRIL MEXICANO, S.A. DE C.V., executed a settlement agreement in terms of article
36 of the Railroad Service Law.



     This being so, and as it is in the best interest of my principal and according to the
provisions set forth in article 36 of the Railroad Service Law, I hereby FORMALLY REQUEST THE
DISMISSAL WITH PREJUDICE form this administrative procedure and therefore request to this Authority
the closure of the records of the administrative file, in view of the fact that the parties have
entered into an agreement that does not affect the rule of law, or the social interest and as
evidenced, the subject matter thereof may be settled among the parties.



     In virtue of the foregoing,



TO THIS GENERAL OFFICE OF RATES, RAILWAY AND MULTIMODAL TRANSPORTATION OF THE MINISTRY OF
COMMUNICATIONS AND TRANSPORT, I hereby respectfully request:




     FIRST.- To acknowledge receipt of this brief, in my capacity as legal representative of the
company FERROCARRIL MEXICANO, S.A. DE C.V., requesting the closure of the file of this
administrative procedure.



     SECOND.- After concluding all administrative requirements, order the termination of this
administrative procedure.



     THIRD.- Issue, at the expense of my principal, a certified copy of the ruling under which the
termination of this administrative procedure is ordered.



I
HEREBY DECLARE.




México, Federal District, February 9, 2010.




LAURA HERNÁNDEZ GONZÁLEZ




92









 








GENERAL OFFICE OF RATES, RAILWAY 

AND MULTIMODAL
TRANSPORTATION OF 
THE MINISTRY OF COMMUNICATIONS 

AND
TRANSPORT.




	 	 	 

	 

	 	KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V.
	 

	 	Ref.: Official Communication No. 120.-829/2002.
	 

	 	Acceptance of dismissal with prejudice.






     EDGAR AGUILETA GUTIÉRREZ, in my capacity as legal representative of KANSAS CITY SOUTHERN DE
MÉXICO, S.A. DE C.V., capacity which is duly assented in the records of this administrative
procedure, I hereby respectfully appear to state as follows:



     That through this brief and pursuant to the provisions of the agreement dated February 9, 2010
executed among my principal and FERROCARRIL MEXCIANO, S.A. DE C.V., I hereby express the consent of
my principal in connection with the termination of the administrative procedure requested by
FERROCARRIL MEXCIANO, S.A. DE C.V.



     In virtue of the foregoing,



TO THIS GENERAL OFFICE OF RATES, RAILWAY AND MULTIMODAL TRANSPORTATION OF THE MINISTRY OF
COMMUNICATIONS AND TRANSPORT, I respectfully request:




     FIRST.- To acknowledge receipt of this brief, in my capacity as legal representative of the
company KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V. requesting the closure of the file of this
administrative procedure.



     SECOND.- After concluding all administrative requirements, order the termination of this
administrative procedure.



     THIRD.- Issue, at the expense of my principal, a certified copy of the ruling under which the
termination of this administrative procedure is ordered.



I
HEREBY DECLARE.





México, Federal District, February 9, 2010.





EDGAR AGUILETA GUTIÉRREZ




93









 








GENERAL OFFICE OF RATES, RAILWAY


AND MULTIMODAL
TRANSPORTATION OF 


THE MINISTRY OF COMMUNICATIONS


AND
TRANSPORT.




	 	 	 

	 

	 	KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V.
	 

	 	Ref.: Official Communication No. 4.3.-1066/2007.
	 

	 	Dismissal with prejudice.






     EDGAR AGUILETA GUTIÉRREZ, in my capacity as legal representative of the company indicated in
the heading of this brief, which capacity has been duly recognized to me under this administrative
procedure, I hereby respectfully appear to state the following:



     That Article 36 of the Railroad Service Law sets forth, that the concessionaries exercising
their freedom of contract may agree among them, switching and trackage rights, by means of which
they may share certain trackage. For a better understanding, hereinbelow a transcription of the
provisions of such article:




Article 36. The concessionaries may agree among themselves the
switching rights and trackage rights, by means of which they can
share a particular trackage. The concessionaire of the trackage will
be responsible for the supply of the railroad equipment and the
conservation and maintenance of the trackage.




The Ministry may establish, in the bidding guidelines and in the
respective concession titles, that for specific sections they shall
grant each other certain switching rights and trackage rights. When
the concessionaries can not reach an agreement within the 90
calendar days following the date on which the negotiations started,
the Ministry, after hearing the parties, will determine the
conditions and considerations according to which such rights shall
be granted.




The concessionaires shall submit to the Ministry a copy of the
agreements executed in terms of this article.



     As evidenced in the foregoing article, the railroad regulations privileges the freedom of
contract of the parties in order for them to determine the rates of the switching and trackage
rights that shall be collected among the concessionaires when sharing a particular trackage.



94









 





     Furthermore, as it is of the knowledge of this Office, on February 9, 2010 my principal and
the company FERROCARRIL MEXICANO, S.A. DE C.V., executed a settlement agreement in terms of article
36 of the Railroad Service Law.



     This being so, and as it is in the best interest of my principal and according to the
provisions set forth in article 36 of the Railroad Service Law, I hereby FORMALLY REQUEST THE
DISMISSAL WITH PREJUDICE form this administrative procedure and therefore request to this Authority
the closure of the records of the administrative file, in view of the fact that the parties have
entered into an agreement that does not affect the rule of law, or the social interest, and as
evidenced, the subject matter thereof may be settled among the parties.



     In virtue of the foregoing,



TO THIS GENERAL OFFICE OF RATES, RAILWAY AND MULTIMODAL TRANSPORTATION OF THE MINISTRY OF
COMMUNICATIONS AND TRANSPORT, I hereby respectfully request:




     FIRST.- To acknowledge receipt of this brief, in my capacity as legal representative of the
company KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V., requesting the closure of the file of this
administrative procedure.



     SECOND.- After concluding all administrative requirements, order the termination of this
administrative procedure.



     THIRD.- Issue, at the expense of my principal, a certified copy of the ruling under which the
termination of this administrative procedure is ordered.



I
HEREBY DECLARE.





México, Federal District, February 9, 2010.




EDGAR AGUILETA GUTIÉRREZ




95









 








GENERAL OFFICE OF RATES, RAILWAY

 AND MULTIMODAL
TRANSPORTATION OF 

THE MINISTRY OF COMMUNICATIONS
 AND
TRANSPORT.




	 	 	 

	 

	 	FERROCARRIL MEXICANO, S.A. DE C.V.
	 

	 	Ref.: Official Communication No. 4.3.-1066/2007.
	 

	 	Acceptance of dismissal with prejudice.






     LAURA HERNÁNDEZ GONZÁLEZ, in my capacity as legal representative of FERROCARRIL MEXICANO, S.A.
DE C.V., capacity which is duly assented in the records of this administrative procedure, I hereby
respectfully appear to state as follows:



     That through this brief and pursuant to the provisions of the agreement dated February 9, 2010
executed among my principal and KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V., I hereby express the
consent of my principal in connection with the termination of the administrative procedure
requested by KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V.



     In virtue of the foregoing,



GENERAL OFFICE OF RATES, RAILWAY AND MULTIMODAL TRANSPORTATION OF THE MINISTRY OF COMMUNICATIONS
AND TRANSPORT, I respectfully request:




     FIRST.- To acknowledge receipt of this brief, in my capacity as legal representative of the
company FERROCARRIL MEXICANO, S.A. DE C.V., requesting the closure of the file of this
administrative procedure.



     SECOND.- After concluding all administrative requirements, order the termination of this
administrative procedure.



     THIRD.- Issue, at the expense of my principal, a certified copy of the ruling under which the
termination of this administrative procedure is ordered.



I
HEREBY DECLARE.





México, Federal District, February 9, 2010.




LAURA HERNÁNDEZ GONZÁLEZ



96









 





GENERAL OFFICE OF RATES, RAILWAY 

AND MULTIMODAL
TRANSPORTATION OF 

THE MINISTRY OF COMMUNICATIONS 

AND
TRANSPORT.




	 	 	 

	 

	 	FERROCARRIL MEXICANO, S.A. DE C.V.
	 

	 	Ref.: Official Communication No. 4.3.-1066/2007.
	 

	 	Dismissal with prejudice.






     LAURA HERNÁNDEZ GONZÁLEZ, in my capacity as legal representative of the company identified in
the heading of this brief, which capacity has been duly recognized to me under this administrative
procedure, I hereby respectfully appear to state the following:



     That Article 36 of the Railroad Service Law sets forth, that the concessionaries exercising
their freedom of contract may agree among them, switching and trackage rights, by means of which
they may share certain trackage. For a better understanding, hereinbelow a transcription of the
provisions of such article:




Article 36. The concessionaries may agree among themselves the
switching rights and trackage rights, by means of which they can
share a particular trackage. The concessionaire of the trackage will
be responsible for the supply of the railroad equipment and the
conservation and maintenance of the trackage.




The Ministry may establish, in the bidding guidelines and in the
respective concession titles, that for specific sections they shall
grant each other certain switching rights and trackage rights. When
the concessionaries can not reach an agreement within the 90
calendar days following the date on which the negotiations started,
the Ministry, after hearing the parties, will determine the
conditions and considerations according to which such rights shall
be granted.




The concessionaires shall submit to the Ministry a copy of the
agreements executed in terms of this article.



     As evidenced in the foregoing article, the railroad regulations privileges the freedom of
contract of the parties in order for them to determine the rates of the switching and trackage
rights that shall be collected among the concessionaires when sharing a particular trackage.



97