exv10w2



 





EXHIBIT
10.2




EXECUTION COPY




 





US$111,000,000

CREDIT AGREEMENT




dated as of June 14, 2007




among




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

as Borrower,




ARRENDADORA KCSM, S.A. DE C.V.,

as Guarantor,




CERTAIN LENDERS,




and




BANK OF AMERICA, N.A.,

as Administrative Agent




 






BBVA SECURITIES INC.

and

BANC OF AMERICA SECURITIES LLC,

as Joint Lead Arrangers and Joint Bookrunners




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	Section 1.1 Certain Defined Terms
	 	 	1	 
	Section 1.2 Other Interpretive Provisions
	 	 	19	 
	Section 1.3 Exchange Rates; Currency Equivalents
	 	 	20	 
	 
	 	 	 	 
	ARTICLE II LOANS, ETC
	 	 	20	 
	 
	 	 	 	 
	Section 2.1 The Loans
	 	 	20	 
	Section 2.2 Notes
	 	 	20	 
	Section 2.3 Borrowings and Continuations
	 	 	21	 
	Section 2.4 Several Obligations; Remedies Independent
	 	 	21	 
	Section 2.5 Repayment
	 	 	21	 
	Section 2.6 Optional Prepayments
	 	 	22	 
	Section 2.7 Reduction of Tranche A Commitments
	 	 	22	 
	Section 2.8 Mandatory Prepayments
	 	 	22	 
	Section 2.9 Interest
	 	 	23	 
	Section 2.10 Computation of Interest
	 	 	23	 
	Section 2.11 Inability to Determine Interest Rate
	 	 	24	 
	Section 2.12 Fees
	 	 	24	 
	Section 2.13 Pro Rata Treatment and Payments
	 	 	25	 
	Section 2.14 Set-Off; Sharing of Payments, Etc
	 	 	26	 
	 
	 	 	 	 
	ARTICLE III YIELD PROTECTION, ETC
	 	 	27	 
	 
	 	 	 	 
	Section 3.1 Taxes
	 	 	27	 
	Section 3.2 Illegality
	 	 	29	 
	Section 3.3 Additional Costs
	 	 	29	 
	Section 3.4 Funding Losses
	 	 	30	 
	Section 3.5 Change of Lending Office
	 	 	30	 
	Section 3.6 Replacement of Lenders
	 	 	31	 
	 
	 	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT
	 	 	32	 
	 
	 	 	 	 
	Section 4.1 Conditions to Initial Funding
	 	 	32	 
	Section 4.2 Conditions Precedent to Each Loan
	 	 	34	 
	Section 4.3 Satisfaction of Conditions Precedent
	 	 	34	 
	 
	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES
	 	 	34	 
	 
	 	 	 	 
	Section 5.1 Status and Licensing
	 	 	35	 
	Section 5.2 Corporate Power and Authority; Enforceable Obligations
	 	 	35	 
	Section 5.3 Compliance with Law and Other Instruments
	 	 	35	 
	Section 5.4 Litigation and Environmental Matters
	 	 	36	 
	Section 5.5 Governmental Approvals
	 	 	36	 
	Section 5.6 Financial Information
	 	 	36	 
	Section 5.7 Taxes, Assessments and Fees
	 	 	36	 
	Section 5.8 Investment Company Act
	 	 	37	 






Credit Agreement i




 









 








TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page
	Section 5.9 Accuracy of Information
	 	 	37	 
	Section 5.10 Absence of Default
	 	 	37	 
	Section 5.11 Ranking; Recourse; Liens
	 	 	37	 
	Section 5.12 Withholding Tax
	 	 	37	 
	Section 5.13 Proper Form
	 	 	38	 
	Section 5.14 Choice of Law
	 	 	38	 
	Section 5.15 Immunity
	 	 	38	 
	Section 5.16 Status of Concession
	 	 	39	 
	Section 5.17 Property
	 	 	39	 
	Section 5.18 Subsidiaries
	 	 	39	 
	Section 5.19 Federal Regulations
	 	 	39	 
	Section 5.20 Labor Matters
	 	 	39	 
	Section 5.21 Existing Indebtedness
	 	 	39	 
	 
	 	 	 	 
	ARTICLE VI AFFIRMATIVE COVENANTS
	 	 	40	 
	 
	 	 	 	 
	Section 6.1 Senior Obligations
	 	 	40	 
	Section 6.2 Reporting Requirements
	 	 	40	 
	Section 6.3 Use of Proceeds
	 	 	42	 
	Section 6.4 Conduct of Business and Maintenance of Existence
	 	 	42	 
	Section 6.5 Maintenance of Government Approvals
	 	 	42	 
	Section 6.6 Compliance with Laws and Other Instruments
	 	 	42	 
	Section 6.7 Maintenance of Property; Insurance
	 	 	43	 
	Section 6.8 Maintenance of Books and Records and Inspection Rights
	 	 	43	 
	Section 6.9 Payment of Obligations
	 	 	43	 
	Section 6.10 Environmental Laws
	 	 	43	 
	Section 6.11 Additional Guarantors
	 	 	44	 
	 
	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	44	 
	 
	 	 	 	 
	Section 7.1 Financial Covenants
	 	 	44	 
	Section 7.2 Margin Regulations
	 	 	44	 
	Section 7.3 Limitation on Restricted Payments
	 	 	45	 
	Section 7.4 Limitation on Investments
	 	 	45	 
	Section 7.5 Optional Payments and Modifications of Certain Debt Instruments
	 	 	45	 
	Section 7.6 Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries
	 	 	46	 
	Section 7.7 Limitation on Transactions with Affiliates
	 	 	46	 
	Section 7.8 Limitation on Liens
	 	 	47	 
	Section 7.9 Limitation on Indebtedness
	 	 	47	 
	Section 7.10 Limitation on Sale-Leaseback Transactions
	 	 	49	 
	Section 7.11 Limitation on Asset Sales
	 	 	49	 
	Section 7.12 Consolidation, Merger and Sale of Assets
	 	 	50	 
	Section 7.13 Lines of Business
	 	 	50	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT
	 	 	50	 






Credit Agreement ii




 









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page
	Section 8.1 Events of Default
	 	 	50	 
	Section 8.2 Remedies
	 	 	52	 
	 
	 	 	 	 
	ARTICLE IX GUARANTEE
	 	 	53	 
	 
	 	 	 	 
	Section 9.1 Guarantees
	 	 	53	 
	Section 9.2 Guarantees Unconditional
	 	 	53	 
	Section 9.3 Discharge Only upon Payment in Full; Reinstatement In Certain
Circumstances
	 	 	54	 
	Section 9.4 Waiver by the Guarantors
	 	 	54	 
	Section 9.5 Subrogation
	 	 	55	 
	Section 9.6 Stay of Acceleration
	 	 	55	 
	 
	 	 	 	 
	ARTICLE X THE ADMINISTRATIVE AGENT
	 	 	55	 
	 
	 	 	 	 
	Section 10.1 Appointment and Authority
	 	 	55	 
	Section 10.2 Rights as a Lender
	 	 	55	 
	Section 10.3 Exculpatory Provisions
	 	 	55	 
	Section 10.4 Reliance by Administrative Agent
	 	 	56	 
	Section 10.5 Delegation of Duties
	 	 	56	 
	Section 10.6 Resignation of Administrative Agent
	 	 	57	 
	Section 10.7 Non-Reliance on Administrative Agent and Other Lenders
	 	 	57	 
	Section 10.8 No Other Duties, Etc
	 	 	58	 
	Section 10.9 Administrative Agent May File Proofs of Claim
	 	 	58	 
	 
	 	 	 	 
	ARTICLE XI MISCELLANEOUS
	 	 	58	 
	 
	 	 	 	 
	Section 11.1 Financial Data
	 	 	58	 
	Section 11.2 Expenses; Indemnity; Damage Waiver
	 	 	58	 
	Section 11.3 Amendments and Waivers, Etc
	 	 	60	 
	Section 11.4 Governing Law
	 	 	61	 
	Section 11.5 Notices; Effectiveness; Electronic Communication
	 	 	61	 
	Section 11.6 Table of Contents; Headings
	 	 	63	 
	Section 11.7 Survival
	 	 	63	 
	Section 11.8 Successors and Assigns
	 	 	64	 
	Section 11.9 Interest Rate Limitation
	 	 	66	 
	Section 11.10 Submission to Jurisdiction; Venue; Service; Waiver of Jury Trial

	 	 	66	 
	Section 11.11 Judgment Currency
	 	 	68	 
	Section 11.12 Execution in Counterparts
	 	 	68	 
	Section 11.13 Waiver of Immunities
	 	 	68	 
	Section 11.14 Severability
	 	 	69	 
	Section 11.15 Treatment of Certain Information; Confidentiality
	 	 	69	 
	Section 11.16 No Waiver; Remedies
	 	 	69	 
	Section 11.17 Entire Agreement
	 	 	70	 
	Section 11.18 USA PATRIOT Act
	 	 	70	 






Credit Agreement iii







 









 








	 	 	 
	Annex 1

	 	Commitments
	 
	 	 
	Schedule 1.1

	 	Specified Deferred Payment Obligations
	Schedule 5.11(b)

	 	Existing Liens
	Schedule 5.17(c)

	 	Insurance Coverage
	Schedule 5.18

	 	Subsidiaries
	Schedule 5.21

	 	Existing Indebtedness
	Schedule 7.4

	 	Existing Investments
	Schedule 7.6

	 	Existing Encumbrances or Restrictions
	Schedule 11.5

	 	Administrative Agent’s Office; Addresses for Notices
	 
	 	 
	Exhibit A

	 	Form of Note
	Exhibit B

	 	Form of Opinion of New York Counsel to the Loan Parties
	Exhibit C

	 	Form of Opinion of Mexican Counsel to the Loan Parties
	Exhibit D

	 	Form of Notice of Borrowing/Continuation
	Exhibit E

	 	Form of Assignment and Assumption
	Exhibit F

	 	Form of Accession Agreement
	Exhibit G

	 	Form of Compliance Certificate






Credit Agreement iv




 









 








CREDIT AGREEMENT




     This CREDIT AGREEMENT (this “Agreement”), is entered into as of June 14, 2007, among KANSAS
CITY SOUTHERN DE MÉXICO, S.A. DE C.V., a corporation with variable capital (sociedad anónima de
capital variable) organized under the laws of Mexico (the “Borrower”), ARRENDADORA KCSM, S.A. DE
C.V., a corporation with variable capital (sociedad anónima de capital variable) organized under
the laws of Mexico (“Arrendadora”), each of the lenders that is a signatory hereto under the
caption “LENDERS” on the signature pages hereto and each other Person that becomes a “Lender” after
the date hereof pursuant to Section 11.8(b), and BANK OF AMERICA, N.A., as the
administrative agent for the Lenders (in such capacity, together with its successors in such
capacity, the “Administrative Agent”).



RECITALS




     WHEREAS, the Borrower has requested that the Lenders make available to the Borrower loans in
an aggregate principal amount up to but not to exceed US$111,000,000 to be disbursed in two
tranches;



     WHEREAS, the Borrower shall use the proceeds of the Loans: (a) to pay all amounts outstanding
under the Existing Credit Agreement and related fees and expenses, (b) to pay all amounts
outstanding in respect of the Borrower’s 10 1/4% Senior Notes, (c) to pay all amounts outstanding
under the Bridge Loan Agreement, (d) to refinance a portion of the 12 1/2% Senior Notes or (v) for
general corporate purposes.



     WHEREAS, the Lenders are willing to make the loans hereunder to the Borrower upon and subject
to all of the terms and conditions hereinafter set forth; and



     WHEREAS, in order to induce the Lenders to make the loans contemplated herein, (a) Arrendadora
has agreed to guaranty the Borrower’s obligations under this Agreement and (b) the parties have
agreed that the obligations of the Borrower under this Agreement shall at all times be guaranteed
by Subsidiaries (as defined below) of the Borrower that represent, in the aggregate, at least 90%
of the total assets of the Borrower and its Consolidated Subsidiaries (as defined below),
Consolidated EBITDA (as defined below) and Consolidated Net Income (as defined below).



     NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereto agree as follows:



ARTICLE I

DEFINITIONS




     SECTION 1.1 Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:



     “10 1/4% Senior Notes” shall mean the 10 1/4% Senior Notes Due June 15, 2007 under the
Indenture, dated as of June 16, 1997, between the Borrower, as issuer and The Bank of New York, as
trustee.



Credit Agreement 1




 









 








     “12 1/2% Senior Notes” shall mean the 12 1/2% Senior Notes Due June 15, 2012 under the
Indenture, dated as of June 13, 2002, between the Borrower, as issuer, and The Bank of New York, as
trustee.



     “Accession Agreement” shall have the meaning set forth in Section 6.11.



     “Act” shall have the meaning set forth in Section 11.18.



     “Additional Amounts” shall have the meaning set forth in Section 3.1(a).



     “Additional Dividends” shall have the meaning set forth in Section 7.3(b).



     “Administration Fee Letter” shall have the meaning set forth in Section 2.12(a).



     “Administrative Agent” shall have the meaning set forth in the introduction hereto.



     “Administrative Agent’s Office” shall mean the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.5 or such other address or account as the
Administrative Agent may from time to time notify the Borrower and the Lenders.



     “Administrative Questionnaire” shall mean an Administrative Questionnaire in a form supplied
by the Administrative Agent.



     “Affected Party” shall have the meaning set forth in Section 3.3(a).



     “Affiliate” shall mean, as applied to any Person, any other Person directly or indirectly
Controlling, Controlled by, or under direct or indirect common Control with, such Person.



     “Agreement” shall have the meaning set forth in the introduction hereto.



     “Agreement Currency” shall have the meaning set forth in Section 11.11.



     “Applicable Law” shall mean, as to any Person, any law, treaty, statute, rule, decree, order
or regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its Property or to which such Person or
any of its Property is subject.



     “Applicable Margin” shall mean the percentages per annum set forth below for Loans based upon
the Consolidated Leverage Ratio as set forth in the most recent certificate of a Responsible
Officer of the Borrower delivered pursuant to Section 6.2(d):



Credit Agreement 2




 









 







	 	 	 	 	 
	Consolidated Leverage Ratio	 	Applicable Margin
	 	 	Tranche A Loans	 	Tranche B Loans
	Ratio is greater than 

or equal to 3.50x
	 	2.125%
	 	2.125%
	Ratio is greater than or equal to 

3.25x and less than 3.50x
	 	1.875%
	 	1.875%
	Ratio is greater than or equal to 

3.00x and less than 3.25x
	 	1.750%
	 	1.750%
	Ratio is greater than or equal to 

2.50x and less than 3.00x
	 	1.625%
	 	1.625%
	Ratio is less than 2.50x
	 	1.375%
	 	1.375%






     Any increase or decrease in the Applicable Margin resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day immediately
following the date a certificate of a Responsible Officer of the Borrower (together with the
accompanying financial statements) mentioned herein is delivered pursuant to Section 6.2(d)
(the “Adjustment Date”) and shall remain in effect until the next change to be effected pursuant to
this clause; provided that if such certificate (together with the accompanying financial
statements) is not delivered when due in accordance with Section 6.2(d), then, until the
first Business Day following the date on which such certificate (together with the accompanying
financial statements) is delivered, the Applicable Margin for each Tranche A Loan and Tranche B
Loan shall be the highest rate for each such Loan set forth in the table above. The Applicable
Margin in effect until the first Adjustment Date to occur after the Initial Borrowing Date shall be
(a) for Tranche A Loans, 1.750%, and (b) for the Tranche B Loans, 1.750%.



     “Approved Fund” shall mean any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



     “Arrangement Fee Letter” shall have the meaning set forth in Section 2.12(b).



     “Arrendadora” shall have the meaning set forth in the introduction hereto.



     “Asset Sale” shall mean, with respect to any Person, any sale, transfer or other disposition
(including by way of merger, consolidation or sale-leaseback transaction) in one transaction or a
series of related transactions of (a) all or any of the Equity Interests of any Subsidiary of such
Person, (b) all or substantially all of the Property of an operating unit or business of such
Person or (c) any other Property of such Person.



Credit Agreement 3




 









 





     “Assignee Group” shall mean two or more Eligible Assignees that are Affiliates of one another
or two or more Approved Funds managed by the same investment advisor.



     “Assignment and Assumption” means an assignment and assumption entered into by a Lender and an
Eligible Assignee (with the consent of any party whose consent is required by Section
11.8(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit
E or any other form approved by the Administrative Agent.



     “Attributable Debt” shall mean, with respect to any Person in respect of a sale-leaseback
transaction, as at the time of determination, the present value (discounted at the interest rate
assumed in making calculations in accordance with GAAP) of the total obligations of such Person, as
lessee, for rental payments during the remaining term of the lease included in such sale-leaseback
transaction (including any period for which such lease has been extended).



     “Bank of America” shall mean Bank of America, N.A, or any successor Person.



     “Base Rate” shall mean for any day a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly
announced from time to time by the Administrative Agent as its “prime rate.” Any change in such
rate announced by the Administrative Agent shall take effect at the opening of business on the day
specified in the public announcement of such change.



     “Beneficiaries” shall mean the Lenders, the Administrative Agent, the Joint Lead Arrangers and
any other Person (other than a Loan Party, any Affiliate thereof or a customer of a Loan Party),
subject to Section 11.8(e), that has a right to receive any payment from a Loan Party under
the Loan Documents.



     “Borrower” shall have the meaning set forth in the introduction hereto.



     “Borrower Materials” shall have the meaning set forth in Section 6.2.



     “Borrowing Date” shall mean the date of the making of any Loan hereunder.



     “Bridge Loan Agreement” shall mean the Bridge Loan Agreement, dated as of April 30, 2007,
among the Borrower, Arrendadora, and certain lenders party thereto.



     “Business Day” shall mean any day other than a Saturday or a Sunday or a day on which banking
institutions are authorized or required to close in New York, New York, or in Mexico City, Mexico,
and, with respect only to any determination of Eurocurrency Rate, that is also a day on which
dealings in Dollar deposits are carried out in the London interbank market.



     “Capital Expenditures” shall mean, with respect to any Person, for any period, the sum of,
without duplication, (a) all expenditures made by such Person during such period for equipment,
fixed assets, real property or improvements, or for replacements or substitutions therefor or
additions thereto, that have been or should be, in accordance with GAAP, reflected as additions to
property, plant or equipment in the consolidated statements of cash flows of such Person for such
period plus (b) the aggregate amount of all Capitalized Lease Obligations assumed or incurred by
such Person during such period.



Credit Agreement 4




 









 








     “Capitalized Lease” shall mean, as applied to any Person, any lease of any Property (whether
real, personal or mixed) of which the discounted present value of the rental obligations of such
Person as lessee, in conformity with GAAP, is required to be capitalized on the balance sheet of
such Person.



     “Capitalized Lease Obligations” of any Person shall mean all rental obligations in respect of
Capitalized Leases, in each case taken at the amount thereof accounted for as indebtedness in
accordance with GAAP.



     “Change of Control” shall mean such time as:



     (a) KCS ceases to (i) be the ultimate “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act and including by reason of any change in the ultimate “beneficial ownership” of the
Equity Interests of the Borrower) of Voting Stock representing more than 50.0% of the total voting
power of the total Voting Stock of the Borrower on a fully diluted basis or (ii) have the power to
direct or cause the direction of the management and policies of the Borrower; or



     (b) the Borrower ceases to (i) own at least 98% of the Voting Stock of Arrendadora or (ii)
have the power to direct or cause the direction of the management and policies of Arrendadora,
other than as a result of a merger of Arrendadora into the Borrower as permitted under this
Agreement.



     “Commitment Fee” shall have the meaning set forth in Section 2.12(c).



     “Commitment Fee Payment Date” shall mean the last Business Day of each March, June, September
and December.



     “Commitment Period” shall mean the Tranche A Commitment Period or the Tranche B Commitment
Period, as the context shall require.



     “Commitments” shall mean, collectively, the Tranche A Commitments and the Tranche B
Commitments.



     “Concession Title” shall mean the Borrower’s right, for a period of 30 years, to be the
exclusive provider (subject to certain trackage rights) of freight transportation services over the
Northeast Rail Lines and for an additional 20 years to be a non-exclusive provider of such services
over the Northeast Rail Lines, granted by the Mexican government pursuant to the Concession Title,
subject in all cases to the terms and conditions of the Concession Title, as in effect on June 23,
1997 and as amended on February 12, 2001 and November 22, 2006.



     “Consolidated EBIT” shall mean, for any period, the Consolidated Net Income of the Borrower
and its Consolidated Subsidiaries for such period, increased by interest expense, Debt Retirement
Costs and provision for (i) taxes based on income and (ii) asset taxes (impuesto al activo) in lieu
of, or in the nature of, income taxes, for such period, and without giving effect to (a) any
extraordinary gains or losses (or other gains or losses resulting from the sale of Property or from
other activities not relating to the normal business of such Persons), (b) non-cash items relating
to statutory profit sharing, in each case as otherwise reflected in Consolidated Net



Credit Agreement 5




 









 







Income and (c) to the extent taken into account in Consolidated Net Income, any amounts
attributable to minority interests.




     “Consolidated EBITDA” shall mean, for any period, Consolidated EBIT adjusted by adding thereto
the amount of all amortization and depreciation for such period, which in each case were deducted
in arriving at Consolidated EBIT for such period.



     “Consolidated Fixed Charge Coverage Ratio” shall mean, as of the last day of any fiscal
quarter of the Borrower, the ratio of (a) Consolidated EBITDA for the preceding four fiscal
quarters ending on such day to (b) Consolidated Fixed Charges for such period.



     “Consolidated Fixed Charges” shall mean, for any period, the sum, without duplication, of (a)
Consolidated Interest Expense for such period, (b) the amount of all Capital Expenditures made by
the Borrower and its Consolidated Subsidiaries during such period, (c) all cash payments in respect
of income or asset taxes made by the Borrower and its Consolidated Subsidiaries during such period
(net of any cash refunds actually received during such period), (d) the scheduled principal amount
of all amortization payments on all Consolidated Indebtedness (including without limitation the
principal component of all Capitalized Lease Obligations) for such period (it being understood that
(i) scheduled principal amortizations of Indebtedness that are refinanced, to the extent permitted
in this Agreement, to be payable on or after the Tranche B Maturity Date shall not be included in
the calculation of Consolidated Fixed Charges and (ii) scheduled principal amortizations of the
Bridge Loan Agreement, the Existing Credit Agreement, the 12 1/2% Senior Notes and the 10 1/4%
Senior Notes that are refinanced by this Agreement shall not be included in the calculation of
Consolidated Fixed Charges), and (e) all cash dividend payments made by the Borrower, (f) the
amount of postings of cash collateral and other payments under Swap Agreements of the Borrower and
its Consolidated Subsidiaries outstanding at the end of such period and (g) all cash payments in
respect of Debt Retirement Costs during such period.



     “Consolidated Indebtedness” shall mean, as at any date of determination, the aggregate stated
balance sheet amount of all Indebtedness (including all Capitalized Lease Obligations) of the
Borrower and its Consolidated Subsidiaries on a consolidated basis as determined in accordance with
GAAP and without giving effect to any revaluation to reflect the market value of such Indebtedness
made in accordance with purchase accounting principles under GAAP.



     “Consolidated Interest Coverage Ratio” shall mean, as of the last day of any fiscal quarter of
the Borrower, the ratio of (a) Consolidated EBITDA for the preceding four fiscal quarters ending on
such day to (b) Consolidated Interest Expense for such period.



     “Consolidated Interest Expense” shall mean, for any period, the total consolidated interest
expense of the Borrower and its Consolidated Subsidiaries for such period (calculated without
regard to any limitations on the payment thereof) plus, without limitation, that portion of
Capitalized Lease Obligations of the Borrower and its Consolidated Subsidiaries representing the
interest factor for such period and, in any event, (i) including (without duplication) withholding
or similar taxes paid by the Borrower and its Consolidated Subsidiaries arising from, or in
connection with, the payment of interest and fees and any other amounts related to interest
expense, but (ii) excluding the amortization of any deferred financing costs incurred in connection
with this Agreement and any other permitted Indebtedness.



Credit Agreement 6




 









 








     “Consolidated Leverage Ratio” shall mean, on any date, the ratio of (a) Consolidated
Indebtedness on such date to (b) Consolidated EBITDA for the period of four fiscal quarters most
recently ended.



     “Consolidated Net Income” shall mean, for any period, the consolidated net after tax income of
the Borrower and its Consolidated Subsidiaries, determined in accordance with GAAP.



     “Consolidated Subsidiaries” shall mean, as to any Person, all Subsidiaries of such Person
which are consolidated with such Person for financial reporting purposes in accordance with GAAP.



     “Control” shall mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative
thereto.



     “Debt Retirement Costs” shall mean premiums, fees and expenses related to the extinguishment
or refinancing of Indebtedness including the write-off of unamortized (a) deferred financing costs
or related issuance premiums or discounts and (b) purchase accounting fair value effect associated
with such Indebtedness.



     “Debt Service” shall mean, for any period, the sum, without duplication, of (a) interest
expense of the Borrower and its Consolidated Subsidiaries paid during such period and (b) principal
paid by the Borrower and its Consolidated Subsidiaries during such period, in each case in respect
of Indebtedness to Persons other than Affiliates of the Borrower.



     “Default” shall mean any of the events specified in Section 8.1, whether or not any
requirement for the giving of notice or lapse of time or both has been satisfied.



     “Default Rate” shall mean a rate per annum equal to 2.0% plus (a) in the case of Loans, the
Eurocurrency Rate for the relevant Interest Period (or, to the extent that Section 2.11 is
applicable, the Base Rate) plus the relevant Applicable Margin or (b) in the case of fees or other
amounts payable hereunder, the Base Rate.



     “Defaulting Lender” shall mean any Lender that (a) has failed to fund any portion of the Loans
required to be funded by it hereunder within one Business Day of the date required to be funded by
it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender
any other amount required to be paid by it hereunder within one Business Day of the date when due,
unless the subject of a good faith dispute, or (c) has been deemed insolvent or becomes the subject
of a bankruptcy or insolvency proceeding.



     “Dividend Accrual Termination Date” shall have the meaning set forth in Section
7.3(b).



     “Dollar Equivalent” shall mean with respect to an amount of Pesos on any date, the Dollar
amount which would result from the conversion of such Peso amount into Dollars on such date, as
reasonably determined by the Administrative Agent using the Exchange Rate as of the close of
business for such date.



Credit Agreement 7





 









 








     “Dollars” and “US$” shall mean the lawful currency of the United States of America.



     “Effective Date” shall mean the date on which the Administrative Agent shall have received
counterparts of this Agreement executed by all parties hereto.



     “Eligible Assignee” shall mean (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative
Agent and (ii) unless an Event of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing,
“Eligible Assignee” shall not include a Loan Party or any of the Loan Parties’ Affiliates or
Subsidiaries; provided, further, that, unless an Event of Default has occurred and is continuing,
an “Eligible Assignee” shall be (A) a Mexican Financial Institution or (B) a non-Mexican Person
that is registered with Hacienda for purposes of Article 195(I) or Article 196(II) of the Mexican
Income Tax Law (Ley del Impuesto Sobre la Renta) or any successor provision thereof and, in the
case of a non-Mexican Person that is registered with Hacienda for purposes of Article 195(I), is a
resident of (or has its principal office, if acting through a branch or an agency, in) a country
that has entered into a treaty for the avoidance of double taxation with Mexico, which treaty is in
effect.



     “Environmental Laws” shall mean any and all federal, state, local or municipal laws, rules,
orders, regulations, statutes, ordinances, codes, decrees, technical standards (normas técnicas),
requirements of any Governmental Authority or other Applicable Law regulating, relating to or
imposing liability or standards of conduct concerning protection of human health or the
environment, as now or at any time hereafter in effect.



     “Environmental Liability” shall mean any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure
to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.



     “Equity Interests” shall mean shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person.



     “Eurocurrency Liabilities” shall mean, with respect to any Lender, the full reserve
requirement percentage imposed in respect of “Eurocurrency Liabilities,” as such term is defined in
Regulation D (or any successor provision) (including any marginal, emergency, supplemental, special
or other reserves) of the Board of Governors of the Federal Reserve System, that such Lender in its
sole discretion determines to be applicable to such Lender for each day during an Interest Period.



     “Eurocurrency Rate” shall mean, for any Interest Period with respect to a Loan, the rate per
annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters
(or other commercially available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., London



Credit Agreement 8




 









 







time, two Business Days prior to the commencement of such Interest Period, for deposits in
Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such
Interest Period. If such rate is not available at such time for any reason, then the “Eurocurrency
Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent
to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period
in immediately available funds in the approximate amount of the Loan being made or continued and
with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch
(or other Bank of America branch or Affiliate) to major banks in the London or other offshore
interbank market for such currency at their request at approximately 11:00 a.m. (London Time) two
Business Days prior to the commencement of such Interest Period.




     “Event of Default” shall have the meaning set forth in Section 8.1.



     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



     “Exchange Rate” for a currency shall mean the rate determined by the Administrative Agent to
be the rate quoted by the Administrative Agent as the spot rate for the purchase by the
Administrative Agent of such currency with another currency through its principal foreign exchange
trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of
which the foreign exchange computation is made; provided that the Administrative Agent may obtain
such spot rate from another financial institution designated by the Administrative Agent if it does
not have as of the date of determination a spot buying rate for any such currency.



     “Excluded Taxes” shall have the meaning set forth in Section 3.1(a).



     “Existing Credit Agreement” shall mean the Credit Agreement, dated as of October 24, 2005,
among the Borrower, Arrendadora, certain lenders party thereto, Bank of America, N.A., as
administrative agent, and BBVA Bancomer, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA
Bancomer, as collateral agent, as amended.



     “Federal Funds Rate” shall mean, for any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on
such transactions as determined by the Administrative Agent.



     “Fee Letters” shall mean the Arrangement Fee Letter and the Administration Fee Letter.



     “Financial Statements” shall have the meaning set forth in Section 5.6(a).



     “Fund” shall mean any Person (other than a natural person) that is (or will be) employed in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of business.



Credit Agreement 9




 









 








     “GAAP” shall mean the generally accepted accounting principles as in effect from time to time
in the United States of America.



     “Governmental Authority” shall mean any branch of power (whether administrative, legislative
or judicial) of any state, any nation or government, any state or other political or administrative
subdivision thereof, any central bank (or similar monetary or regulatory authority) and any entity
exercising executive, legislative, judicial, regulatory or administrative authority of or
pertaining to government.



     “Guarantee” shall mean any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing (whether pursuant to a guaranty, a fianza civil, an aval or otherwise) any
Indebtedness of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness of such other Person
(whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase
assets, goods, securities or services (unless such purchase arrangements are on arm’s length terms
and are entered into in the ordinary course of business), to take-or-pay, or to maintain financial
statement conditions or otherwise) or (b) entered into for purposes of assuring in any other manner
the holder of such Indebtedness of the payment thereof or to protect such holder against loss in
respect thereof (in whole or in part); provided that the term “Guarantee” shall not include
endorsements for collection or deposit in the ordinary course of business or obligations arising,
in the ordinary course of business, from contracting for interline railroad services. The term
“Guarantee” used as a verb has a corresponding meaning.



     “Guaranteed Obligations” shall have the meaning set forth in Section 9.1(a).



     “Guarantors” shall mean Arrendadora and such other Subsidiaries as may from time to time
accede to this Agreement as Guarantors pursuant to Section 6.11.



     “Hacienda” shall mean the Secretaría de Hacienda y Crédito Público (Ministry of Finance and
Public Credit) of Mexico.



     “Hazardous Materials” shall mean all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



     “Indebtedness” shall mean, with respect to any Person at any date of determination (without
duplication):



     (a) all indebtedness of such Person for borrowed money;



     (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar
instruments;



     (c) all obligations, contingent or otherwise, of such Person in respect of acceptances,
letters of credit, financial guaranty insurance policies or similar instruments;



Credit Agreement 10





 









 








     (d) all obligations of such Person for the deferred purchase price of Property or services
(other than current trade payables incurred in the ordinary course of such Person’s business and
other than the Specified Deferred Payment Obligations);



     (e) all obligations of such Person as lessee under Capitalized Leases (but not operating
leases);



     (f) all Guarantees of such Person in respect of obligations of the kind referred to in
clauses (a) through (e) and (h) of this definition;



     (g) all Indebtedness of other Persons secured by a Lien on any Property of such Person,
whether or not such Indebtedness is assumed by such Person; provided that the amount of such
Indebtedness shall be the lesser of (i) the fair market value of such Property at such date of
determination and (ii) the amount of such Indebtedness; and



     (h) to the extent not otherwise included in this definition, net obligations to make payments
under Swap Agreements.



     The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date
of all unconditional obligations as described above and, with respect to contingent obligations,
the maximum liability upon the occurrence of the contingency giving rise to the obligation;
provided that, in the case of clause (h) above, the amount of Indebtedness shall be the
mark-to-market amount of such obligations at such date.



     “Indemnitee” shall have the meaning set forth in Section 11.2(b).



     “Information” shall have the meaning set forth in Section 11.15.



     “Initial Borrowing Date” shall mean the date of the making of the initial Loans under this
Agreement, which shall be the date specified by the Borrower in its initial Notice of
Borrowing/Continuation as the date of borrowing of the initial Loans, subject to satisfaction of
the conditions set forth herein.



     “Interest Payment Date” shall mean, (a) as to any Loan having an Interest Period of three
months or less, the last day of such Interest Period, (b) as to any Loan having an Interest Period
longer than three months, each day that is three months, or a whole multiple thereof, after the
first day of such Interest Period and the last day of such Interest Period, and (c) as to any Loan
being repaid or prepaid on any date, the date of any such repayment or prepayment.



     “Interest Period” shall mean, with respect to any Loans, (a) initially the period commencing
on and including the Borrowing Date with respect to such Loan and ending on but excluding the
numerically corresponding day in the calendar month one, two, three or six months thereafter, as
selected by the Borrower in its Notice of Borrowing/Continuation for such Loans, and (b)
thereafter, each period commencing on and including the last day of the immediately preceding
Interest Period and ending on but excluding the date one, two, three or six months thereafter, as
selected by the Borrower in its Notice of Borrowing/Continuation in accordance with Section
2.3 (it being understood that, if such notice is not received by the Administrative Agent in
accordance with this clause (b), the Interest Period for any Loans will have an Interest
Period for such Loans of one month); provided that (i) if any Interest Period would otherwise end



Credit Agreement 11




 









 







on a day which is not a Business Day, such Interest Period shall be extended to the
immediately succeeding Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest Period shall end on the
immediately preceding Business Day, (ii) if any Interest Period begins on a day for which there is
no numerically corresponding day in the calendar month at the end of such Interest Period, such
Interest Period shall end on the last Business Day of such calendar month that would be the end of
such Interest Period and (iii) if any Interest Period for any Loans would otherwise (but for this
clause (iii)) extend beyond the Tranche A Maturity Date or the Tranche B Maturity Date, as
the case may be, then such Interest Period shall end on the Tranche A Maturity Date or the Tranche
B Maturity Date, as the case may be.




     “Investment” shall mean any advance, loan, extension of credit (by way of guaranty or
otherwise) or capital contribution to, or purchase of any Equity Interest, bonds, notes, debentures
or other debt securities or any Property constituting a business unit of, or any other investment
in, any Person.



     “Joint Lead Arrangers” shall mean, collectively, BBVA Securities Inc. and Banc of America
Securities LLC, or any respective successor Person.



     “KCS” shall mean Kansas City Southern, a Delaware corporation, or any successor Person.



     “Lenders” shall mean, collectively, Lenders that have made Tranche A Loans or Tranche B Loans
or that have outstanding Tranche A Commitments or Tranche B Commitments, and any successor or
assigns thereto pursuant to Section 11.8.



     “Lending Office” shall mean, with respect to any Lender, (a) initially, the office of such
Lender designated below its signature and (b) thereafter, such other office of such Lender (or a
branch thereof) as such Lender may, with the consent of the Administrative Agent, designate as the
office through which it will perform its obligations under this Agreement.



     “Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement,
security trust (fideicomiso de garantía), encumbrance, lien (statutory or other), preference,
priority or other security agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, or any other contractual or
statutory arrangement or provision having substantially the same economic, financial or operational
effect as any of the foregoing), including, without limitation, any device (including, without
limitation, a foreign trust or joint venture) for the purpose of setting aside funds for
facilitating payments to any person or group of persons.



     “Loan Documents” shall mean, collectively, this Agreement, the Notes, the Fee Letters, each
Accession Agreement, the Commitment Letter dated as of April 23, 2007, among the Borrower, the
Joint Lead Arrangers and the Administrative Agent, and any other agreements, documents and
instruments executed and delivered in connection with the transactions contemplated hereby and
thereby.



     “Loan Parties” shall mean, collectively, the Borrower, Arrendadora and each of the other
Guarantors existing from time to time.



Credit Agreement 12






 









 








     “Loans” shall mean, collectively, the Tranche A Loans and the Tranche B Loans.



     “Majority Lenders” shall mean, on any date, Lenders holding more than 50% of the sum of (a)
all undrawn Commitments on such date and (b) all Loans outstanding on such date.



     “Material Adverse Effect” shall mean a material adverse effect on (a) the business,
operations, Property, condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole or (b) the validity or enforceability of any of the Loan Documents or
the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.



     “Maximum Rate” shall have the meaning set forth in Section 11.9.



     “Mexican Financial Institution” shall mean an institución de banca múltiple or an institución
de banca de desarrollo organized or created, as appropriate, and existing pursuant to and in
accordance with the laws of Mexico and authorized to engage in the business of banking by Hacienda.



     “Mexico” shall mean the Estados Unidos Mexicanos (United Mexican States).



     “Mexrail” shall mean Mexrail, Inc., a Delaware corporation, or any successor Person.



     “Moody’s” shall mean Moody’s Investors Service, Inc. and any successor Person.



     “Net Cash Proceeds” shall mean, with respect to any event, (a) the proceeds, in the form of
cash or cash equivalents, received in respect of such event, including (i) any cash or cash
equivalents received in respect of non-cash proceeds, but only as and when received and any amount
eliminated from any reserve referred to in clause (iv) below but only as and when
eliminated, (ii) in the case of a casualty, insurance proceeds and (iii) in the case of a
condemnation or similar event, condemnation awards and similar payments, net of (b) the sum of (i)
all reasonable fees and out-of-pocket expenses (including fees and expenses of counsel and
investment bankers) paid by the Borrower and its Subsidiaries to third parties (other than
Affiliates) in connection with such event, (ii) in the case of an Asset Sale (or a casualty or
other damage or condemnation or similar proceeding), the amount of all payments required to be made
by the Borrower and its Subsidiaries as a result of such event to repay Indebtedness (other than
Loans hereunder) secured by such Property or otherwise subject to mandatory prepayment as a result
of such event, (iii) the amount of all taxes paid by the Borrower and its Subsidiaries, and (iv)
the amount of any reserves established by the Borrower and its Subsidiaries to fund contingent
liabilities reasonably estimated to be payable, in each case during the year that such event
occurred or the next succeeding year and that are directly attributable to such event (as
determined reasonably and in good faith by the chief financial officer of the Borrower).



     “New Equipment” shall mean locomotives, rolling stock, containers, chassis and work equipment
(used by a Loan Party or one of its Consolidated Subsidiaries in its railroad business or the
Borrower’s railroad business, including, but not limited to, anchor spreaders, ballast regulators,
high-rail vehicles, rail lifters, spike drivers and pullers, tampers, and tie inserters and
removers), in each case acquired after the Effective Date.



     “New Indebtedness” shall have the meaning set forth in Section 7.9(h).



Credit Agreement 13




 









 








     “Non-Excluded Taxes” shall have the meaning set forth in Section 3.1(a).



     “Northeast Rail Lines” shall mean that portion of the Mexican Railroad system that is the
subject of the Concession Title.



     “Notes” shall have the meaning set forth in Section 2.2.



     “Notice of Borrowing/Continuation” shall have the meaning set forth in Section 2.3 and
shall be substantially in the form of Exhibit D.



     “Obligation Termination Date” shall have the meaning set forth in Section 2.10(c).



     “Obligations” shall mean all of the obligations and liabilities of the Borrower to the Lenders
and the Administrative Agent under or in connection with this Agreement and the other Loan
Documents (as any of the foregoing may from time to time be respectively amended, modified,
substituted, extended or renewed), direct or indirect, absolute or contingent, due or to become
due, now or hereafter existing.



     “Other Currency” shall have the meaning set forth in Section 11.11.



     “Other Taxes” shall mean any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.



     “Overnight Rate” shall mean, for any day, the greater of (a) the Federal Funds Rate and (b) an
overnight rate determined by the Administrative Agent, in accordance with banking industry rules on
interbank compensation.



     “Participant” shall have the meaning set forth in Section 11.8(d).



     “Payee” shall have the meaning set forth in Section 3.1(a).



     “Permitted Liens” shall mean:



     (a) Liens for taxes, assessments, governmental charges or claims with respect to amounts not
yet delinquent or that are being contested in good faith by appropriate legal proceedings promptly
instituted and diligently conducted and for which a reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall have been made;



     (b) statutory and common law Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen or other similar Liens arising in the ordinary course of business
and with respect to amounts not yet delinquent or being contested in good faith by appropriate
legal proceedings promptly instituted and diligently conducted and for which a reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP shall have been made;



     (c) Liens incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social security;



Credit Agreement 14




 









 








     (d) Liens incurred or deposits made to secure the performance of tenders, bids, leases,
statutory or regulatory obligations, surety and appeal bonds, government contracts, performance and
return-of-money bonds and other obligations of a similar nature incurred in the ordinary course of
business (exclusive of obligations for the payment of borrowed money);



     (e) easements, rights-of-way, municipal and zoning ordinances and similar charges,
encumbrances, title defects or other irregularities that do not materially interfere with the
ordinary course of the business;



     (f) licenses, leases or subleases granted to others that do not materially interfere with the
ordinary course of the business;



     (g) Liens arising from the rendering of a final judgment or order that does not give rise to
an Event of Default;



     (h) Liens securing reimbursement obligations with respect to commercial or trade letters of
credit that encumber documents and other Property relating to such letters of credit and the
products and proceeds thereof;



     (i) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the import of goods; and



     (j) Liens encumbering customary initial deposits and margin deposits, and other customary
Liens on cash and cash deposits, in each case, securing Indebtedness under Swap Agreements designed
solely to protect from fluctuations in interest rates, currencies or the price of commodities.



     “Person” shall mean any individual, corporation, company, voluntary association, partnership,
limited liability company, joint venture, trust, unincorporated organization, Governmental
Authority or other entity of whatever nature.



     “Pesos” shall mean the lawful currency of Mexico.



     “Platform” shall have the meaning set forth in Section 6.2.



     “Prepayment Event” shall mean any of the following events: (a) any Asset Sale described in
Section 7.11(f) but only to the extent that, in any fiscal year of the Borrower, the
aggregate Net Cash Proceeds from all such Asset Sales exceed US$10,000,000; (b) any casualty or
other insured damage to, or any taking under power of eminent domain or by condemnation or similar
proceedings of, any Property of the Borrower or any Subsidiary, but only to the extent that, in any
fiscal year of the Borrower, the aggregate Net Cash Proceeds from any such occurrence exceed
US$10,000,000; or (c) the incurrence by the Borrower or any Subsidiary of any Indebtedness
permitted under Section 7.9(g).



     “Prepayment Threshold Amount” shall have the meaning set forth in Section 2.8(a).



     “Process Agent” shall have the meaning set forth in Section 11.10(c).



Credit Agreement 15




 









 








     “Property” of any Person shall mean any property, asset, general intangible or receivable, or
interest therein, of such Person, including any accounts receivable.



     “Public Lender” shall have the meaning set forth in Section 6.2.



     “Rate of Exchange” shall have the meaning set forth in Section 11.11.



     “Register” shall have the meaning set forth in Section 11.8(c).



     “Reinvestment Notice” shall mean a written notice executed by a Responsible Officer of the
Borrower stating that no Event of Default has occurred and is continuing and that the Borrower
(directly or indirectly through a Subsidiary) intends and expects to use all or a specified portion
of the Net Cash Proceeds of a Prepayment Event described in clause (a) or (b) of
the definition thereof to acquire or repair assets useful in the business of the Borrower or any of
its Subsidiaries.



     “Reinvestment Prepayment Date” shall mean with respect to any Prepayment Event described in
clause (a) or (b) of the definition thereof, the earlier of: (a) the date occurring
180 days after such Prepayment Event and (b) the date on which the Borrower or its relevant
Subsidiary shall have determined not to, or shall have otherwise ceased to, acquire or repair
assets useful in the Borrower’s (or such Subsidiary’s) business with all or any portion of the Net
Cash Proceeds of such Prepayment Event.



     “Related Parties” shall mean, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.



     “Responsible Officer” of a Person shall mean the Chairman, Chief Executive Officer, Chief
Financial Officer, President, any Executive Director, Director, Vice President, Treasurer or
Assistant Treasurer of such Person, in each case authorized to the extent required by a board
resolution or shareholder meeting; provided that such officer is then authorized to bind such
Person.



     “Restricted Payment” means any payment or distribution by a Person, directly or indirectly,
whether in cash or other Property or in obligations of such Person: (a) of any dividends or other
distribution on its Equity Interest or any interest on capital, excluding any dividends,
distributions or interest paid solely in such Person’s common stock other than mandatorily
redeemable common stock, (b) in respect of the purchase, acquisition, redemption, retirement,
defeasance or other acquisition for value of any of its Equity Interest or any warrants, rights or
options to acquire such Equity Interest, now or hereafter outstanding, (c) in respect of the return
of any capital to its stockholders as such, (d) in connection with any distribution or exchange of
Property to or with its stockholders as such in respect of its Equity Interest, warrants, rights,
options, obligations or securities or (e) in return of any irrevocable equity contributions.



     “S&P” shall mean Standard & Poor’s Ratings Group, or any successor Person.



     “Senior Notes” shall mean, collectively: (a) the Borrower’s 10 1/4% Senior Notes due 2007
issued pursuant to the indenture, dated as of June 16, 1997, between the Borrower and The



Credit Agreement 16






 









 







Bank of New York, (b) the Borrower’s 12 1/2% Senior Notes due 2012 issued pursuant to the
indenture, dated as of June 13, 2002, between the Borrower and The Bank of New York, (c) the
Borrower’s 9 3/8% Senior Notes due 2012 issued pursuant to the indenture, dated as of April 19,
2005, between the Borrower and The Bank of Nova Scotia Trust Company of New York, (d) the
Borrower’s 7 5/8% Senior Notes due 2013 issued pursuant to the indenture, dated as of November 21,
2006, between the Borrower and U.S. Bank National Association and (e) the Borrower’s 7 3/8% Senior
Notes due 2014 issued pursuant to the indenture, dated as of May 16, 2007, between the Borrower and
U.S. Bank National Association.




     “Senior Notes Indentures” shall mean, collectively, the indentures referred to in the
definition of Senior Notes.



     “Specified Deferred Payment Obligations” mean all payment obligations as in effect as of March
31, 2007 with respect to: (a) the locomotive maintenance agreements with each of Alstom Transporte,
S.A. de C.V. and GETS Locomotive Services, S.A. de C.V., and (b) a track maintenance rehabilitation
agreement with Alstom Transporte, S.A. de C.V, which obligations in each case are accrued and
recorded on the Borrower’s balance sheet. Such payment obligations are set forth on Schedule
1.1.



     “Subsidiary” shall mean, with respect to any Person, any corporation, association or other
entity of which more than 50% of the voting power of the outstanding Voting Stock is owned,
directly or indirectly, by such Person or by such Person and/or one or more other Subsidiaries of
such Person.



     “Swap Agreement” means any agreement with respect to any swap, forward, future or derivative
transaction or option or similar agreement involving, or settled by reference to, one or more
rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions.



     “Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.



     “Temporary Cash Investments” shall mean any of the following: (a) direct obligations of the
United States of America or any agency thereof or obligations fully and unconditionally guaranteed
by the United States of America or any agency thereof; (b) time deposit accounts, certificates of
deposit and money market deposits denominated and payable in Dollars maturing within 180 days of
the date of acquisition thereof issued by a bank or trust company which is organized under the laws
of the United States of America, any state thereof or any foreign country recognized by the United
States of America, and which bank or trust company has capital, surplus and undivided profits
aggregating in excess of US$200,000,000 (or the foreign currency equivalent thereof) and has
outstanding long-term Dollar-denominated debt which is rated “A” (or such similar equivalent
rating) or higher by S&P or Moody’s; (c) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clause (a) above entered into with
a bank meeting the qualifications described in clause (b) above; (d) commercial paper
denominated and payable in Dollars, maturing not more than 90 days after the date of acquisition,
issued by a corporation (other than an Affiliate of the Borrower) organized and in existence under
the laws of the United States of America or any state thereof with a rating at the time as of which
any investment therein is made of “P-1” (or higher)



Credit Agreement 17






 









 







according to Moody’s or “A-1” (or higher) according to S&P; (e) securities with maturities of
six months or less from the date of acquisition issued or fully and unconditionally guaranteed by
any state, commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least “A” by S&P or Moody’s; (f) Certificados
de la Tesorería de la Federación (Cetes) or Bonos de Desarrollo del Gobierno Federal (Bondes) or
any other debt securities issued by the government of Mexico directly and maturing not more than
180 days after the acquisition thereof; (g) Investments in money market funds substantially all of
whose assets are comprised of securities of the types described in clauses (a) through
(f) above; (h) demand deposit accounts with U.S. banks (or Mexican banks specified in
clause (i) of this definition) maintained in the ordinary course of business; and (i)
certificates of deposit, bank promissory notes and bankers’ acceptances denominated in Pesos,
maturing not more than 180 days after the acquisition thereof and issued or guaranteed by any one
of the five largest banks (based on assets as of the immediately preceding December 31) organized
under the laws of Mexico and which are not under intervention by the Instituto para la Protección
del Ahorro Bancario or any successor thereto.




     “Tranche” shall mean the Tranche A Loans or the Tranche B Loans, as the context shall require.



     “Tranche A Commitment” shall mean, as to any Lender, the commitment of such Lender, on and
subject to the terms and conditions of this Agreement, to make Tranche A Loans to the Borrower
pursuant to Section 2.1(a) in a principal amount up to but not exceeding the amount
specified opposite its name on Annex 1 under “Tranche A Commitments.”



     “Tranche A Commitment Period” shall mean the period from and including the Effective Date to
the earlier of: (a) the date the Borrower specifies as the date of termination of the Tranche A
Commitments pursuant to Section 2.7, and (b) the Business Day preceding the Tranche A
Maturity Date.



     “Tranche A Lender” shall mean any Lender having a Tranche A Commitment.



     “Tranche A Loan” shall have the meaning set forth in Section 2.1(a).



     “Tranche A Maturity Date” shall mean December 30, 2011.



     “Tranche A Percentage” shall mean, as to any Tranche A Lender, the percentage which such
Tranche A Lender’s Tranche A Commitment is of the aggregate amount of Tranche A Commitments of all
Tranche A Lenders.



     “Tranche A Principal Payment Date” shall mean June 30, 2011, September 30, 2011 and the
Tranche A Maturity Date; provided that if any such date is not a Business Day, then such Tranche A
Principal Payment Date shall be the next Business Day unless such next Business Day would fall in
another calendar month, in which case such Tranche A Principal Payment Date shall be the
immediately preceding Business Day.



     “Tranche B Borrowing Date” shall have the meaning set forth in Section 2.1(b).



     “Tranche B Commitment” shall mean, as to any Lender, the commitment of such Lender, on and
subject to the terms and conditions of this Agreement, to make Tranche B Loans to the



Credit Agreement 18






 









 







Borrower pursuant to Section 2.1(c) in a principal amount up to but not exceeding the
amount specified opposite its name on Annex 1 under “Tranche B Commitments.”




     “Tranche B Commitment Period” shall mean the period from and including the Effective Date to
the date ninety days following the Effective Date.



     “Tranche B Lender” shall mean any Lender with a Tranche B Commitment.



     “Tranche B Loan” shall have the meaning set forth in Section 2.1(b).



     “Tranche B Maturity Date” shall mean June 29, 2012.



     “Voting Stock” shall mean, with respect to any Person, capital stock of any class or kind
ordinarily having the power to vote for the election of directors, managers or other voting members
of the governing body of such Person.



     “Wholly Owned” shall mean, with respect to any Person, a Subsidiary of such Person all of the
outstanding Equity Interests of which (other than any director’s qualifying shares or any minimum
statutorily required shares under Mexican law) are owned by such Person or one or more Wholly Owned
Subsidiaries of such Person.



     SECTION 1.2 Other Interpretive Provisions. (a) Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when used in the Notes or any
certificate or other document made or delivered pursuant hereto.



     (b) Unless otherwise expressly provided herein, references to agreements (including this
Agreement) and other documents shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent that such amendments and other modifications are not
prohibited by this Agreement or the Notes.



     (c) Accounting terms not defined herein shall have the meanings customarily given in
accordance with GAAP as in effect on the Effective Date. All ratios and computations shall be
computed in conformity with GAAP applied on a consistent basis in Dollars.



     (d) The term “including” is not limiting and means “including without limitation.”



     (e) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section, Annex, Schedule and Exhibit references are to this Agreement unless
otherwise specified.



     (f) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.



     (g) The terms “may” and “might” and similar terms used with respect to the taking of an action
by any Person shall reflect that such action is optional and not required to be taken by such
Person.



     (h) In this Agreement, in the computation of periods of time from a specified date to a later
specified date, unless otherwise specified, the word “from” means “from and including” and



Credit Agreement 19




 









 







the words “to” and “until” each mean “to but excluding.” Periods of days referred to in this
Agreement shall be counted in calendar days unless Business Days are expressly prescribed.




     (i) The Loan Documents are the result of negotiations among and have been reviewed by counsel
to each of the parties, and are the products of all such parties. Accordingly, they shall not be
construed against any Person merely because of any such Person’s involvement in their preparation.



     SECTION 1.3 Exchange Rates; Currency Equivalents. Except for purposes of financial
statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or
except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for
purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the
Administrative Agent.



ARTICLE II

LOANS, ETC.




     SECTION 2.1 The Loans. (a) The Tranche A Loans. Subject to the terms and
conditions set forth herein, each Tranche A Lender severally agrees to make revolving loans in
Dollars (collectively, the “Tranche A Loans”) to the Borrower from time to time during the Tranche
A Commitment Period in such Tranche A Lender’s Tranche A Percentage of such aggregate amounts as
the Borrower may from time to time request under the Tranche A Loans; provided that (i) the
aggregate amount of Tranche A Loans requested by the Borrower to be made on a Borrowing Date must
be in a minimum of US$5,000,000 and integral multiples of US$1,000,000 in excess thereof and (ii)
no Tranche A Lender shall be permitted or required to make any Tranche A Loan if after giving
effect to such Tranche A Loans: (A) the principal amount under all Tranche A Loans outstanding
would exceed an amount equal to (x) US$81,000,000 minus (y) the amount of all reductions of Tranche
A Commitments made in accordance with Section 2.7; (B) there would be more than eight
distinct Interest Periods applicable to Tranche A Loans; or (C) the outstanding Tranche A Loans of
such Tranche A Lender would exceed its Tranche A Commitment. Subject to the foregoing and to
Section 2.7, Tranche A Loans may be repaid and reborrowed from time to time.



     (b) The Tranche B Loans. Subject to the terms and conditions set forth herein, each
Tranche B Lender severally agrees to make a term loan in Dollars (its “Tranche B Loan”) to the
Borrower on any one Business Day (the “Tranche B Borrowing Date”) during the Tranche B Commitment
Period in an aggregate principal amount outstanding not to exceed the Tranche B Commitment of such
Tranche B Lender and, as to all Tranche B Lenders, in an aggregate principal amount not to exceed
US$30,000,000. The Tranche B Loans may not have at any time more than three distinct Interest
Periods. Any amounts not borrowed on the Tranche B Borrowing Date with respect to the Tranche B
Loans may not be borrowed thereafter and any available amounts not requested to be borrowed under
the Tranche B Loans prior to the termination of the Tranche B Commitment Period shall result in the
pro rata irrevocable termination of an equivalent amount of the Tranche B Commitments on the
earlier of (i) the date on which the Administrative Agent receives the Notice of
Borrowing/Continuation with respect to the Tranche B Loans or (ii) the termination of the Tranche B
Commitment Period.



     SECTION 2.2 Notes. The Loans made by each Lender shall be evidenced by promissory
notes which qualify as pagarés under Mexican law, issued by the Borrower and guaranteed (por



Credit Agreement 20




 









 







aval) by the then existing Guarantors (subject to Section 6.11) substantially in the
form of Exhibit A (each a “Note”), delivered to the Administrative Agent on behalf of each
of the Lenders on or before the Initial Borrowing Date, appropriately completed and representing
the full amount of each such Lender’s Tranche A Commitment or Tranche B Commitment, as the case may
be; provided that in case of conflict between the terms of this Agreement and any such Note
(including the amount of any principal or interest payable hereunder (whether such payment is made
on a scheduled payment date, at stated maturity, by acceleration or otherwise), the manner of
computation of any financial ratio used in determining the Applicable Margin, or the definition of
“Applicable Margin”), the terms of this Agreement shall prevail and the Lenders shall not be
entitled to claim amounts due under the Notes in excess of amounts due under this Agreement.




     SECTION 2.3 Borrowings and Continuations. The Borrower shall give the Administrative
Agent irrevocable notice of a request for the borrowing of any Loans hereunder, or the continuation
of Loans hereunder, substantially in the form of Exhibit D (which notice must be received
by the Administrative Agent prior to 12:00 noon, New York City time, at least three Business Days
prior to the requested Borrowing Date for a Loan or, in the case of continuation of Loans, at least
three Business Days prior to the end of the then current Interest Period for such Loans),
specifying (a) the Tranche under which the Loans are to be made or continued, (b) the aggregate
amount of the Loans to be borrowed or continued, (c) the requested Borrowing Date (or, as
applicable, date of continuation, which date shall be an Interest Payment Date) and (d) the
Interest Period applicable to each portion of such Loans (the “Notice of Borrowing/Continuation”).
Each borrowing or continuation of Loans shall be in a principal amount of US$5,000,000 and integral
multiples of US$1,000,000. Upon receipt of a Notice of Borrowing/Continuation, the Administrative
Agent shall promptly notify each Lender that has a Commitment with respect to the relevant Tranche
of the amount of each Loan to be made or to be continued by such Lender and the other relevant
terms thereof. Not later than 1:00 p.m., New York City time, on the relevant Borrowing Date each
such Lender shall make available to the Administrative Agent an amount in immediately available
funds in Dollars equal to the Loan to be made by such Lender, at the Administrative Agent’s Office.
Unless the Administrative Agent determines that any applicable condition specified in Article
IV has not been satisfied, the Administrative Agent shall credit the amounts so received, in
like funds, to the account of the Borrower maintained with the Administrative Agent in New York
City. In furtherance of the foregoing, the Borrower hereby irrevocably authorizes the
Administrative Agent to apply such amounts as the Borrower shall direct in the Notice of
Borrowing/Continuation.



     SECTION 2.4 Several Obligations; Remedies Independent. The obligations of the Lenders
hereunder to make Loans and to make payments pursuant to Section 11.2(c) are several and
not joint. The failure of any Lender to make any Loan or to make any payment under Section
11.2(c) on any date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Loan or to make its payment under Section 11.2(c). The amounts
payable by the Borrower at any time hereunder and under the Notes to each Lender shall be a
separate and independent debt, and each Lender shall be entitled to protect and enforce its
individual rights arising out of this Agreement and the Notes independently of any other Lender,
and it shall not be necessary for any other Lender or the Administrative Agent to consent to, or be
joined as an additional party in, any proceedings to recover the payment of any overdue amounts.



Credit Agreement 21




 









 








     SECTION 2.5 Repayment. (a) Tranche A Loans. The Borrower agrees to pay to
the Administrative Agent for the account of each Tranche A Lender on each Tranche A Principal
Payment Date a principal amount of the Tranche A Loans sufficient to reduce the outstanding Tranche
A Loans to an amount at or below the Tranche A Commitments in effect on such Tranche A Principal
Payment Date, after giving effect to the reductions thereof made pursuant to Section
2.7(c); provided that on the Tranche A Maturity Date, the then aggregate unpaid principal
amount of the outstanding Tranche A Loans shall be paid in full.



     (b) Tranche B Loans. The Borrower agrees to pay to the Administrative Agent for the
account of each Tranche B Lender the full principal amount of the Tranche B Loans on the Tranche B
Maturity Date.



     SECTION 2.6 Optional Prepayments. (a) The Borrower may, without penalty or premium
but subject to the indemnity provisions of Section 3.4, prepay all or a portion of the
Loans, upon at least three Business Days’ prior irrevocable notice to the Administrative Agent
specifying the Loans to be prepaid, their Tranche and their corresponding Borrowing Date and the
date and amount of the prepayment; provided that each partial prepayment of any Tranche shall be in
the minimum amount of US$5,000,000 and integral multiples of US$1,000,000 in excess thereof.



     (b) Upon receipt of a notice of prepayment, the Administrative Agent shall promptly give
notice thereof to each Lender holding a Loan to be prepaid. If such notice of prepayment is given
by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein, together with accrued interest to,
and any other amounts then due on, each such date on the amount prepaid. Each optional prepayment
shall be applied pro rata to the Loans made on the Borrowing Date and under the Tranche being
prepaid in accordance with Section 2.13(a) and (with respect to Tranche A Loans) to the
installments of principal pro rata across the remaining scheduled amortizations. Any Tranche B
Loan prepaid may not be reborrowed.



     SECTION 2.7 Reduction of Tranche A Commitments. (a) The Borrower may from time to
time during the Tranche A Commitment Period, on at least three Business Days’ prior written notice
received by the Administrative Agent (which shall promptly give notice thereof to each Tranche A
Lender), permanently reduce the amount of the Tranche A Commitments to an amount not less than the
aggregate principal amount of all outstanding Tranche A Loans (after giving effect to any payment
or prepayment thereof). Any such reduction of Tranche A Commitments shall be in the minimum amount
of US$5,000,000 and integral multiples of US$1,000,000 in excess thereof. The Borrower may at any
time on like notice during the Tranche A Commitment Period terminate the Tranche A Commitments upon
payment in full of the entire principal amount then outstanding of the Tranche A Loans, together
with all accrued and unpaid interest thereon and all other amounts payable by the Borrower in
connection therewith.



     (b) All reductions of Tranche A Commitments shall be pro rata among the Tranche A Lenders
according to their Tranche A Percentages.



     (c) On (i) the first Tranche A Principal Payment Date, the Tranche A Commitments shall be
automatically reduced by US$27,000,000; (ii) the second Tranche A Principal Payment Date, the
Tranche A Commitments shall be automatically reduced by US$27,000,000; and (iii)



Credit Agreement 22




 









 







the final Tranche A Principal Payment Date, the Tranche A Commitments shall be automatically
terminated.




     SECTION 2.8 Mandatory Prepayments. (a) If on any date the Borrower or any its
Subsidiaries shall receive Net Cash Proceeds from any Prepayment Event, the Borrower shall
promptly, and in any event within ten Business Days, make a prepayment of the Loans in an aggregate
amount equal to 100% of such Net Cash Proceeds; provided that the Borrower shall not be required to
prepay the Loans as a result of a Prepayment Event under clause (a) or (b) of the
definition thereof if (and to the extent in excess of the Prepayment Threshold Amount), for any
fiscal year of the Borrower with respect to such Net Cash Proceeds received by the Borrower or any
of its Subsidiaries from any of the events described in clause (a) or (b),
respectively, of such definition that are in excess of US$1,000,000 (with amounts under each such
clause (a) and clause (b) being separately calculated as in excess of US$1,000,000
(each, the “Prepayment Threshold Amount”)), the Borrower shall have delivered to the Administrative
Agent a Reinvestment Notice prior to the date on which a prepayment would otherwise be required
under this Section 2.8(a). If the Borrower delivers a Reinvestment Notice pursuant to the
proviso to the immediately preceding sentence, such Net Cash Proceeds may be applied for the
purposes set forth in such Reinvestment Notice and, if not so applied by the Reinvestment
Prepayment Date with respect to the relevant Prepayment Event, shall be applied on such date to
prepay the Loans in accordance with clause (c) below, until such outstanding Loans are
repaid in full.



     (b) Amounts to be applied in connection with prepayments made pursuant to clause (a)
shall be applied (i) first to the Tranche B Loans and (ii) second, once all amounts due under the
Tranche B Loans have been paid in full, to reduce permanently the Tranche A Commitments pro rata.
After giving effect to such Commitment reductions, if the aggregate amount of Tranche A Loans
outstanding would exceed the then amount of the Tranche A Commitments, the Borrower shall repay
each such excess amount promptly (and, in any event, within ten Business Days) after the event
giving rise to such reduction of the Tranche A Commitments.



     (c) Each prepayment of Loans under this Section 2.8 shall be made together with
accrued interest to the date of such prepayment on the amount so prepaid and any other amounts due
pursuant to Section 3.4. Any amount prepaid under this Section 2.8 may not be
reborrowed.



     SECTION 2.9 Interest. (a) Loans. The Borrower shall pay to the
Administrative Agent for the account of each Lender interest on the unpaid principal amount of the
Loans for each day during each Interest Period for each such Loan until the date on which such
Loans are paid in full at a rate per annum equal to Eurocurrency Rate determined for such Interest
Period plus the relevant Applicable Margin.



     (b) If all or a portion of (i) the principal amount of any Loan, (ii) any interest payable on
the principal amount of any Loan (to the extent permitted by Applicable Law) or (iii) any fee
payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to the Default Rate
from the date of such non-payment until paid in full and shall be payable on demand.



     (c) Except as otherwise provided in clause (b), interest shall be payable in arrears
on each Interest Payment Date for the applicable Loan.



Credit Agreement 23




 









 








     SECTION 2.10 Computation of Interest. (a) Interest in respect of the Loans shall be
calculated on the basis of a 360-day year for the actual days elapsed; provided that if interest
with respect to any Loan shall apply at the Base Rate in accordance with this Agreement, such
interest shall be calculated on the basis of a 365/366-day year for the actual days elapsed. The
Administrative Agent shall, as soon as practicable, notify the Borrower and the Lenders of each
determination of Eurocurrency Rate; provided that any failure to do so shall not relieve the
Borrower of any liability hereunder.



     (b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of the Borrower or any
Lender, deliver to the Borrower or such Lender, as the case may be, a statement showing the
quotations used by the Administrative Agent in determining any interest rate pursuant to
Section 2.9(a).



     (c) If, as a result of any restatement of or other adjustment to the financial statements of
the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the
Consolidated Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate
and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher
pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to
the Administrative Agent for the account of the applicable Lenders, promptly on demand by the
Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States or similar proceeding
under the Mexican Ley de Concursos Mercantiles, automatically and without further action by the
Administrative Agent or any Lender), an amount equal to the excess of the amount of interest and
fees that should have been paid for such period over the amount of interest and fees actually paid
for such period. This paragraph shall not limit the rights of the Administrative Agent or any
Lender, as the case may be, under Article VIII. The Borrower’s obligations under this
paragraph shall survive the termination of the Commitments and the repayment of all other
Obligations hereunder (such date, the “Obligation Termination Date”) up to and including the date
that is the earlier of (i) the one year anniversary following the Obligation Termination Date and
(ii) the date following the Obligation Termination Date of the delivery of the consolidated annual
financial statements of the Borrower and its Consolidated Subsidiaries included in the Borrower’s
10-K filing with the Securities and Exchange Commission.



     SECTION 2.11 Inability to Determine Interest Rate. (a) In the event that the
Administrative Agent shall have reasonably determined (which determination shall be conclusive and
binding upon the Borrower) that, by reason of circumstances affecting the interbank eurodollar
market, adequate means do not exist for ascertaining the Eurocurrency Rate applicable pursuant to
Section 2.9(a), for any requested Interest Period, the Administrative Agent shall forthwith
give notice by facsimile of such determination to the Borrower and each Lender at least one day
prior to the last day of the current Interest Period. Thereafter, the obligation of the Lenders to
make or maintain Eurocurrency Rate Loans shall be suspended until the Administrative Agent (upon
the instruction of the Majority Lenders) revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for the making or continuation of a Loan or, failing that,
such Loan requested or continued by the Borrower will bear interest at the Base Rate.



Credit Agreement 24




 









 








     SECTION 2.12 Fees. (a) Administration Fee. The Borrower agrees to pay to
the Administrative Agent, for its account, all fees in such amount and in such manner as shall have
been agreed to by the Administrative Agent and the Borrower in a separate fee letter (the
“Administration Fee Letter”).



     (b) Arrangement Fees. The Borrower agrees to pay to Banc of America Securities LLC
and BBVA Securities Inc., for their account, all fees in such amount and in such manner as shall
have been agreed to among the Joint Lead Arrangers and the Borrower in a separate fee letter dated
as of April 23, 2007 (the “Arrangement Fee Letter”).



     (c) Commitment Fee. (i) The Borrower agrees to pay to the Administrative Agent, for
the account of each Tranche A Lender with a Tranche A Commitment, a commitment fee on the daily
average unused portion of such Lender’s Tranche A Commitment for the period from and including the
Effective Date to but excluding the last day of the Tranche A Commitment Period applicable to the
Tranche A Commitments (the “Commitment Fee”) at a rate per annum determined based on the aggregate
level of disbursements under Tranche A Loans in accordance with the table below:



	 	 	 
	Disbursement Level of Tranche A Loans	 	Commitment Fee Rate
	Disbursement level is greater than 37%
	 	0.50%
	Disbursement level is greater than or equal to 12% and 

less than or equal to 37%
	 	0.75%
	Disbursement level is less than 12%
	 	0.90%







     (ii) The Commitment Fee shall be payable in arrears on each Commitment Fee Payment
Date, for the period then ending for which such Commitment Fee shall not have been
theretofore paid. The Commitment Fee shall be computed for the actual number of days elapsed
on the basis of a year of 360 days.



     SECTION 2.13 Pro Rata Treatment and Payments. (a) Except as otherwise provided
herein, (i) each payment by the Borrower on account of principal of the Loans shall be made pro
rata to the Lenders according to the respective outstanding principal amounts of the Loans then due
and payable and (ii) each payment of interest on the Loans shall be made for the account of the
Lenders pro rata in accordance with the respective amounts of interest on the Loans then due and
payable to them.



     (b) Payments of principal and interest in respect of Loans and payments of fees and other
amounts due hereunder shall be made in Dollars. All payments to be made by the Borrower shall be
made without condition or deduction for any counterclaim, defense, recoupment or set-off. Except
as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such payment is owed, at
the Administrative Agent’s Office and in immediately available funds, and shall be made not later
than 2:00 p.m., New York City time, on the date specified herein. The Administrative Agent shall
distribute such payments to the Lender



Credit Agreement 25




 









 







or Lenders entitled to receive the same promptly upon receipt in like funds as received. All
payments received by the Administrative Agent after 2:00 p.m., New York City time, shall be deemed
received on the next succeeding Business Day and any applicable interest or fee shall continue to
accrue. If any payment on a Loan becomes due and payable on a day other than a Business Day
therefor, the maturity thereof shall be extended to the next succeeding Business Day for such Loan
(and such extension of time shall be reflected in computing interest or fees, as the case may be)
unless, with respect to Loans, the result of such extension would be to extend such payment into
another calendar month, in which event such payment shall be made on the immediately preceding
Business Day.




     (c) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Loan that such Lender will not make available to the Administrative Agent such
Lender’s share of such Loan, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.1 and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Loan available to the Administrative Agent, then the
applicable Lender and the Borrower, upon receipt of notice from the Administrative Agent of such
failure, severally agree to pay to the Administrative Agent forthwith on demand such corresponding
amount in immediately available funds with interest thereon, for each day from and including the
date such amount is made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of a payment to be made by such Lender, the Overnight Rate
and (ii) in the case of a payment to be made by the Borrower, the interest rate applicable to the
Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the
same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the
amount of such interest paid by the Borrower for such period. If such Lender pays its share of the
applicable Commitment to the Administrative Agent, then the amount so paid shall constitute such
Lender’s Loan included in such Commitment. Any payment by the Borrower shall be without prejudice
to any claim the Borrower may have against a Lender that shall have failed to make such payment to
the Administrative Agent.



     (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not
in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender, in immediately available funds
with interest thereon, for each day from and including the date such amount is distributed to it to
but excluding the date of payment to the Administrative Agent, at the Overnight Rate.



     (e) Except as otherwise set forth herein, all payments made under this Agreement or any other
Loan Document shall be applied first (in each case on a pro rata basis to the recipients thereof
based upon the amounts then owed to them) to pay fees and expenses due to the Beneficiaries under
the Loan Documents, then to pay accrued and unpaid interest on the Loans, then to pay principal of
the Loans and then to pay any and all other amounts payable to the Beneficiaries under the Loan
Documents.



Credit Agreement 26





 









 








     SECTION 2.14 Set-Off; Sharing of Payments, Etc. (a) Without limiting any of the
obligations of the Loan Parties or the rights of any Beneficiary under the Loan Documents, if the
Borrower shall fail to pay when due (whether at stated maturity, by acceleration or otherwise) any
amount payable by it hereunder or under any other Loan Document, then (to the extent not in
violation of an Applicable Law) each Beneficiary may, without prior notice to any Loan Party (which
notice is expressly waived by it to the fullest extent permitted by Applicable Law), set off and
appropriate and apply against such amount any and all deposits (general or special, time or demand,
provisional or final, in any currency, matured or unmatured) at any time held or any other
Indebtedness owing by such Beneficiary or any of its Affiliates (in each case, including any branch
or agency thereof) to or for the credit or account of the Borrower or any other Loan Party. Each
Beneficiary shall promptly provide written notice of any such set-off by it to the Borrower and the
Administrative Agent; provided that failure by such Beneficiary to provide such notice shall not
give the Borrower any cause of action or right to damages or affect the validity of such set-off
and application.



     (b) If, other than as expressly provided elsewhere herein, any Beneficiary shall obtain on
account of the Obligations owing to it hereunder or in respect of its Loans any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or otherwise) in excess of
its share of payments on account of the Obligations obtained by all the Beneficiaries, such
Beneficiary shall forthwith (i) notify the Administrative Agent of such fact, and (ii) purchase
from the other Beneficiaries such participations in such amounts made by them as shall be necessary
to cause such purchasing Beneficiary to share the excess payment ratably with each of them;
provided, that if all or any portion of such excess payment is thereafter recovered from the
purchasing Beneficiary, such purchase shall to that extent be rescinded and each other Beneficiary
shall repay to the purchasing Beneficiary the purchase price paid therefor, without interest. The
provisions of this Section 2.14(b) shall not be construed to apply to (A) any payment made
by the Borrower pursuant to and in accordance with the express terms of this Agreement or (B) any
payment obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Loans. The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased pursuant to this Section
2.14 and will in each case notify the Lenders and the Borrower following any such purchases.



     Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so
under Applicable Law, that any Beneficiary acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff permitted hereunder and
counterclaim with respect to such participation as fully as if such Beneficiary were a direct
creditor of such Loan Party in the amount of such participation.



ARTICLE III

YIELD PROTECTION, ETC.




     SECTION 3.1 Taxes. (a) All payments made by each Loan Party under this Agreement and
any Notes shall be made free and clear of, and without deduction for or on account of, any present
or future Taxes, including Other Taxes (but excluding any tax imposed on or measured by the net
income or net profits or capital (or any franchise or similar tax imposed in lieu thereof) of a
beneficiary of such payment (each a “Payee”) pursuant to the laws of the jurisdiction (or any
political subdivision thereof) in which it is organized or the jurisdiction (or any political



Credit Agreement 27




 









 







subdivision thereof) in which the Lending Office of such Lender is located and any withholding
taxes to the extent imposed by reason of any Payee, that is not a Mexican Financial Institution, or
its assignees or participants, if any, failing to make reasonable commercial efforts, consisting of
timely making any necessary filing and taking related action, to maintain its registration for the
purposes of Article 195(I) or Article 196(II) of the Mexican Income Tax Law (Ley del Impuesto Sobre
la Renta) or any successor provision with Hacienda (collectively, the “Excluded Taxes”)). If any
such Taxes that are not Excluded Taxes (“Non-Excluded Taxes”) are required to be withheld from any
amounts payable to any Payee hereunder (subject to the right of such Loan Party to contest any such
requirement in good faith, so long as proper reserves are maintained and each Payee hereunder is
paid the full amounts payable hereunder including any additional amounts payable), such Loan Party
shall pay such Non-Excluded Taxes, including Other Taxes, to the appropriate taxing authority, and
the amounts payable to each such Payee shall be increased by such additional amounts (the
“Additional Amounts”) necessary to yield to such Payee (after payment of all Non-Excluded Taxes,
Other Taxes and Additional Amounts, including any of the foregoing levied on Additional Amounts)
interest or any such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement in the absence of such payments or deductions; provided that no such Additional
Amounts shall be payable in respect of any Taxes that would not have been imposed but for a failure
by a Payee to provide the documents required by Section 3.1(c) strictly pursuant to the
terms of, and only in the circumstances specified in, Section 3.1(c), in excess of the
Additional Amounts that would have been payable had such documents been provided. In addition,
such Loan Party shall pay any Other Taxes to the relevant Governmental Authority in accordance with
Applicable Law. Whenever any Non-Excluded Tax or Other Tax is payable by a Loan Party, as promptly
as possible thereafter, such Loan Party shall send to the Administrative Agent, for the account of
such Payee, a certified copy by a Responsible Officer of such Loan Party of a stamped filed receipt
showing payment thereof or such other document reasonably satisfactory to such Payee showing
payment thereof. If such Loan Party fails to pay any Non-Excluded Taxes or Other Taxes when due to
the appropriate taxing authority or fails to remit to the Administrative Agent the required
receipts or other required documentary evidence, such Loan Party shall indemnify the affected Payee
for any incremental taxes, interest, penalties, loss, liability, claim or expense (including legal
fees and expenses) that may become payable by any such Payee as a result of any such failure. This
indemnity and agreement shall survive termination of the Agreement and payment of the Loans.




     (b) Subject to the last sentence of Section 3.1(c) below, each Loan Party shall
indemnify the Administrative Agent and each Payee, within 10 days after written demand therefor,
for the full amount of any Non-Excluded Taxes or Other Taxes paid by the Administrative Agent or
such Payee on or with respect to any payment by or on account of any obligation of such Loan Party
hereunder (including Non-Excluded Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section 3.1) and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to such Loan Party by a Payee,
or by the Administrative Agent on its own behalf or on behalf of a Payee, shall be conclusive
absent manifest error.



     (c) Each Payee that is not a Mexican Financial Institution shall from time to time, at the
request of the Borrower or the Administrative Agent, furnish to the Borrower or the



Credit Agreement 28




 









 







Administrative Agent, as the case may be, such documentation required under Applicable Law as
may be required to establish any available exemption from, or reduction in the amount of, otherwise
applicable Non-Excluded Taxes; provided that (i) such documentation is consistent with Applicable
Law and (ii) such documentation would not, in the judgment of such Payee, require such Payee to
disclose any confidential or proprietary information or otherwise be disadvantageous to such Payee;
provided that such documentation shall not be considered disadvantageous solely by virtue of
administrative inconvenience to such Payee. The Borrower and the Administrative Agent shall be
entitled to rely upon the accuracy of any such documentation furnished to it by any Payee that is
not a Mexican Financial Institution and shall have no obligation to indemnify such Payee for any
incremental taxes, interest or penalties that may become payable by such Payee solely as a result
of any inaccuracy contained therein or the Payee’s failure to furnish such documentation.




     SECTION 3.2 Illegality. Notwithstanding any other provisions herein, if any
Applicable Law or any change therein or in the interpretation or application thereof shall make it
unlawful for any Lender to make or maintain a Loan as contemplated by this Agreement, then such
Lender may give notice thereof to each of the Borrower and the Administrative Agent and, upon the
giving of such notice (a) the Commitments of such Lender hereunder to make further Loans shall
forthwith be canceled (with, unless the Borrower replaces such Lender in accordance with
Section 3.6 within ten Business Days following such notice, a corresponding reduction of
the aggregate amount of the Commitments under the Tranche of the canceled Commitment) and/or (b) if
such Applicable Law shall so mandate, such Lender’s Loan shall be prepaid in full by the Borrower,
together with accrued and unpaid interest thereon and all other amounts payable by the Borrower
under this Agreement, on or before such date as shall be mandated by such Applicable Law (such
prepayment not being shared as described in Section 2.13 with any Lenders not so affected);
provided that if it is lawful for such Lender to maintain its Loan through the last day of the then
current Interest Period, as the case may be, such payment shall be made on such date.



     SECTION 3.3 Additional Costs. (a) If, after the Effective Date, and as a result of
the adoption of any law, regulation, treaty or official directive or request (whether or not having
the force of law) or any change therein or any introduction thereof (which such change or
introduction is publicly announced through official governmental, regulatory or other customary
means after the Effective Date) or compliance therewith by the Borrower, the Administrative Agent
or any Lender (or any corporation Controlling such Lender) including those relating to taxation,
reserves, special deposit, cash ratio, liquidity, capital adequacy or Eurocurrency Liabilities, if
applicable, or other requirement or any other form of banking or monetary requirements or controls,
any of the following shall occur:




     (i) the cost to any Lender of maintaining its Loans is increased by an amount
determined by such Lender to be material; or




     (ii) any amount receivable by any Lender is reduced by an amount determined by such
Lender to be material as a result of maintaining its Loans; or




     (iii) the rate of return on such Lender’s (or its Controlling corporation’s) capital is
reduced as a consequence of its obligations hereunder below that which such Lender could
have achieved but for such adoption, change or introduction (taking into



Credit Agreement 29






 









 









consideration such Lender’s or such corporation’s policies with respect to capital
adequacy) by an amount deemed by such Lender to be material;


in the case of each of clauses (i), (ii) and (iii) other than any increase
in or incurrence of cost, reduction in yield or other return or additional payment resulting from
Excluded Taxes, then and in each such case:





     (A) such Lender or the Administrative Agent (an “Affected Party”) shall notify
the Borrower through the Administrative Agent in writing of such event promptly upon
its becoming aware of the event entitling it to make a claim; and




     (B) within a reasonable period (not exceeding 15 Business Days) following any
demand from time to time by such Affected Party through the Administrative Agent
(with a copy contemporaneously sent to the Borrower), the Borrower shall pay to the
Administrative Agent, for the account of such Affected Party, such amount as shall
compensate such Affected Party for such increased cost, reduced amount receivable or
reduction in rate of return (excluding anticipated profits unrelated to those
measured by the Applicable Margin, the Default Rate, if applicable, and the
Commitment Fee). The certificate of such Affected Party specifying the amount of
such compensation shall be conclusive save in the case of manifest error.



     (b) If an Affected Party shall request compensation under this Section 3.3, such
Affected Party shall furnish to the Borrower a statement setting forth the basis for requesting
such compensation.



     (c) The covenants and agreements set forth in this Section 3.3 shall survive the
termination of this Agreement and the payment of the outstanding Loans. Failure or delay on the
part of any Affected Party to demand compensation pursuant to this Section 3.3 shall not
constitute a waiver of such Affected Party’s right to demand compensation; provided that the
Borrower shall not be required to compensate an Affected Party, as applicable, pursuant to this
Section 3.3 for any increased costs or reductions incurred more than 90 days prior to the
date that such Affected Party notifies the Borrower of the event giving rise to such increased
costs or reductions and of such Affected Party’s intention to claim compensation therefor; and
provided further that, if the event giving rise to such increased costs or reduction is
retroactive, then the 90 day period referred to above shall be extended to include the period of
retroactive effect thereof.



     SECTION 3.4 Funding Losses. The Borrower agrees to indemnify each Lender and to hold
such Lender harmless from any actual loss or expense (excluding loss of profit) which such Lender
may sustain or incur as a consequence of (a) default by the Borrower in payment when due (by
acceleration or otherwise) of the principal amount of or interest on the Loans of such Lender, (b)
default by the Borrower in making a borrowing of Loans or any prepayment after the Borrower has
given a notice in accordance with Section 2.3 or 2.6 and (c) the making by the
Borrower of a prepayment of the Loans on a day which is not the last day of an Interest Period
(whether or not the Administrative Agent or such Lender has previously consented to such
prepayment), including any such loss or expense arising from interest or fees payable by such
Lender to lenders of funds obtained by it in order to maintain its Loans hereunder as set forth in
a



Credit Agreement 30




 









 







certificate of such Lender delivered to the Borrower through the Administrative Agent. This
covenant shall survive termination of this Agreement and payment of the Loans.




     SECTION 3.5 Change of Lending Office. Each Lender that is not a Mexican Financial
Institution agrees that, upon the occurrence of any event giving rise to the operation of
Section 3.1(a) (other than the imposition of the Mexican withholding taxes expected, based
upon the identity and place of residence of each Lender on the Effective Date, or the Mexican
withholding taxes applicable to interest payments made to an Eligible Assignee), 3.2 or
3.3(a) as to it and upon request by the Borrower, it will use its commercially reasonable
efforts to avoid or minimize the consequences of such event if such action shall not, in the
judgment of such Lender, as the case may be, be illegal or economically or otherwise
disadvantageous to it. If such Lender is entitled to compensation for the events specified under
Section 3.1 (other than as set forth in the preceding sentence) or 3.3(a), or the
Borrower is required to make a prepayment as a result of the operation of Section 3.2, such
Lender shall use commercially reasonable efforts for a period of 30 days to designate a different
Lending Office for any Obligation affected by such event if such designation will avoid the need
for, or reduce the amount of, such compensation (except as set forth in the preceding sentence) and
will not, in the sole opinion of such Lender, result in any economic, legal or regulatory or other
disadvantage to such Lender or any of its Affiliates.



     SECTION 3.6 Replacement of Lenders. The Borrower shall be permitted, at its sole
expense and effort, to replace with a replacement financial institution or Eligible Assignee any
Lender (a) that requests reimbursement for amounts owing pursuant to Section 3.1(a) (but
only if such Lender is (i) not a Mexican Financial Institution and (ii) a financial institution not
registered with Hacienda for purposes of Article 195(I) or Article 196(II) of the Mexican Income
Tax Law or any successor provision thereof and, in the case of a financial institution registered
with Hacienda for purposes of Article 195(I) of the Mexican Income Tax Law, not a resident of (or,
if acting through a branch or agency, does not have its principal office in) a country with which
Mexico has entered into a treaty for the avoidance of double taxation) or 3.3(a), (b) to
which the Borrower is required to make a prepayment or commitment reduction as a result of the
operation of Section 3.2, (c) that defaults in its obligation to make its Loan hereunder or
(d) that fails to consent to an election, consent, amendment, waiver or other modification to this
Agreement or other Loan Document requiring more Lenders than the Majority Lenders’ consent and such
election, consent, amendment, waiver or other modification is otherwise consented to by Lenders
holding more than 66 2/3% of the sum of (i) all undrawn Commitments on such date and (ii) all Loans
outstanding on such date, without giving effect to the Loans and undrawn Commitments attributable
to such Lender; provided that (A) such replacement does not conflict with any Applicable Law, (B)
no Default or Event of Default shall have occurred and be continuing at the time of such
replacement, (C) prior to any such replacement, such Lender shall have taken no action under
Section 3.5 which has eliminated the continued need for payment of amounts owing pursuant
to Section 3.1(a) or 3.3(a) or the operation of Section 3.2, (D) the
replacement financial institution shall purchase, at par, the Loans and other amounts (including
accrued and unpaid interest) owing to such replaced Lender on or prior to the date of replacement,
(E) the Borrower shall be liable to such replaced Lender under Section 3.4 if the Loans
owing to such replaced Lender shall be purchased other than on the last day of an Interest Period
relating to such Loans, (F) the replacement financial institution, if not already a Lender, shall
be reasonably satisfactory to the Administrative Agent, (G) the replaced Lender shall be obligated
to make such replacement without recourse in accordance with the provisions of Section 11.8
(provided that



Credit Agreement 31




 









 







the Borrower shall be obligated to pay the registration and processing fee referred to
therein), (H) until such time as such replacement shall be consummated, the Borrower shall pay all
additional amounts (if any) required pursuant to Section 3.1(a) or 3.3(a), as the
case may be, and (I) any such replacement shall not be deemed to be a waiver of any rights that the
Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender.




ARTICLE IV

CONDITIONS PRECEDENT




     SECTION 4.1 Conditions to Initial Funding. The obligation of each Lender to make the
Loans requested to be made by it on the Initial Borrowing Date is subject to the occurrence of the
Effective Date and satisfaction of the following conditions precedent (in addition to the
conditions set forth in Section 4.2), written notice of which satisfaction will be given by
the Administrative Agent to the Borrower:



     (a) The Administrative Agent shall have received the following, each of which shall be an
original or telecopy (followed promptly by an original) unless otherwise specified, each properly
executed by a Responsible Officer of the signing Loan Party and each in form and substance
satisfactory to the Administrative Agent and each of the Lenders and in sufficient number of copies
for distribution to all Lenders:




     (i) Agreement. This Agreement, duly executed and delivered by the parties
hereto;




     (ii) Notes. Duly executed Notes for each of the Lenders, dated the Initial
Borrowing Date, issued in accordance with this Agreement;




     (iii) Opinion of Counsel to the Loan Parties. An opinion, dated the Initial
Borrowing Date, of each of Sonnenschein, Nath & Rosenthal LLP and White & Case, S.C.,
special U.S. counsel and special Mexican counsel, respectively, to the Loan Parties, in
substantially the form of Exhibits B and C, addressed to the Administrative
Agent and each Lender;




     (iv) Opinion of Counsel to the Administrative Agent. An opinion, dated the
Initial Borrowing Date, of each of Mayer, Brown, Rowe & Maw LLP and Ritch Mueller, S.C.,
special U.S. counsel and special Mexican counsel, respectively, to the Administrative Agent;




     (v) Governmental and Third-Party Approvals. Copies of all necessary orders,
consents, approvals (including authorizations from any central bank), licenses, permissions,
registrations and validations of, or notices to or filings with, and exemptions by, any
Governmental Authority, and all third-party consents and approvals, required for the
execution, delivery, performance or carrying out by the Borrower and Arrendadora of the
provisions of the Loan Documents, and for the validity or enforceability of the obligations
incurred hereunder or thereunder, which shall be in full force and effect;




     (vi) Organizational Documents. The following organizational documents: (A) a
copy duly certified by a Mexican Public Notary, in Spanish, of the estatutos sociales of the
Borrower and Arrendadora as in effect as of the Effective Date and the Initial



Credit Agreement 32




 









 









Borrowing Date and further certified by the Secretary or Alternate Secretary of the
Board of Directors of each of the Borrower and Arrendadora, as to effectiveness; (B) an
incumbency certificate designating the officers of the Borrower and Arrendadora (together
with their specimen signatures) who are authorized to execute any document in connection
with the transactions contemplated by the Loan Documents and certifying that the resolutions
and powers-of-attorney contemplated in the following clauses (C) and (D)
have not been modified, revoked or rescinded as of the date of such certificate; (C) copies
notarized by a Mexican Public Notary of resolutions of the shareholders of the Borrower and
Arrendadora certified by the Secretary or the Alternate Secretary of the Board of Directors
of the Borrower or Arrendadora, as the case may be, or a Responsible Officer of the Borrower
or Arrendadora, as the case may be, authorizing the execution, delivery and performance of
the Loan Documents to which it is a party and the designation of the Process Agent as its
agent for service of process; and (D) copies duly certified by a Mexican Public Notary and
by the Secretary or Alternate Secretary of the Board of Directors of each of Arrendadora and
the Borrower, of the powers-of-attorney granted to officers of the Borrower and Arrendadora
authorizing the execution of each Loan Document and to the Process Agent to act as agent for
service of process;




     (vii) Concession Title. A copy of the Concession Title together with a
certificate, dated the Initial Borrowing Date, of the Secretary or the Alternate Secretary
of the Board of Directors of the Borrower or any Responsible Officer of the Borrower stating
that the Concession Title is in full force and effect and further that the Borrower is in
material compliance with all terms and conditions applicable thereunder or pursuant to
Applicable Law;




     (viii) Financial Statements. (A) Audited consolidated financial statements of
the Borrower and its Consolidated Subsidiaries for fiscal year 2006 and (B) unaudited
interim consolidated financial statements of the Borrower and its Consolidated Subsidiaries
for the three months ended after the date of the latest applicable financial statements
delivered pursuant to clause (A) of this clause through March 31, 2007;




     (ix) Process Agent Acceptance. A letter from the Process Agent accepting its
appointment as agent for each Loan Party.



     (b) Representations and Warranties. The representations and warranties of the
Borrower and Arrendadora contained in each of the Loan Documents shall be true and correct in all
material respects on and as of the Initial Borrowing Date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of such specific date)
with the same effect as if made on and as of such date, and each of the Borrower and Arrendadora
shall have delivered to the Administrative Agent a certificate of a Responsible Officer to that
effect.



     (c) No Event of Default. No Default or Event of Default shall have occurred and be
continuing on the Initial Borrowing Date or shall result from the making of any Loan hereunder on
such date or the use of the proceeds thereof, and each of the Borrower and Arrendadora shall have
delivered to the Administrative Agent a certificate of a Responsible Officer to that effect.



     (d) Material Adverse Change of the Borrower and its Subsidiaries. There shall not
have occurred any event, change or condition since December 31, 2006 with respect to the



Credit Agreement 33






 









 







Borrower and its Subsidiaries that, individually or in the aggregate, has had, or could
reasonably be expected to have, a material adverse effect on the business, assets, liabilities,
operations, condition (financial or otherwise), operating results or prospects of the Borrower and
its Subsidiaries, taken as a whole.




     (e) Material Adverse Change in the Syndication Market. There shall not have occurred
any event, change or condition with respect to the loan syndication market or the financial,
banking or capital markets generally that, individually or in the aggregate, has had, or could
reasonably be expected to have, a material adverse effect on the syndication of the Loans.



     SECTION 4.2 Conditions Precedent to Each Loan. The obligation of each Lender to make
any Loan requested to be made by it on any date during the Commitment Period is subject to the
satisfaction of the following conditions precedent:



     (a) Notice of Borrowing/Continuation. The Administrative Agent shall have received a
Notice of Borrowing/Continuation as required by Section 2.3.



     (b) Representations and Warranties. The representations and warranties of the
Borrower and each Guarantor contained in each of the Loan Documents (other than any such
representation or warranty which, by its term, speaks as of a particular date) shall be true and
correct in all material respects on and as of each Borrowing Date, before and after giving effect
to the making of the relevant Loans on such Borrowing Date and to the application of the proceeds
thereof, with the same effect as if made on and as of such date.



     (c) No Default or Event of Default. No Default or Event of Default shall have
occurred and be continuing on any Borrowing Date or shall result from the making of the requested
Loans on such date or the use of the proceeds thereof.



     (d) Payment of Fees and Expenses. The Administrative Agent shall have received
evidence of payment of the fees and expenses then due and payable under Sections 2.12(a)
and (b) and 11.2 and of any and all stamp taxes or similar taxes payable on or
before the Initial Borrowing Date in connection with the transactions contemplated by the Loan
Documents, including legal fees of special U.S. and Mexican counsel to the Administrative Agent
(all of which fees, expenses and taxes the Borrower authorizes the Administrative Agent to deduct
from proceeds of the Loans).



     The borrowing of any Loans by the Borrower hereunder on each Borrowing Date shall constitute a
representation and warranty by the Borrower as of such Borrowing Date that the conditions contained
in clauses (c) and (d) have been satisfied.



     SECTION 4.3 Satisfaction of Conditions Precedent. Without limiting the generality of
the provisions of Section 10.4, for purposes of determining compliance with the conditions
specified in Sections 4.1 and 4.2, each Lender shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter required thereunder
to be consented to or approved by or acceptable or satisfactory to a Lender unless the
Administrative Agent shall have received notice from such Lender prior to the proposed Borrowing
Date specifying its objection thereto. The determination as to satisfaction of the conditions
precedent set forth in Sections 4.1 and 4.2 shall be at the sole discretion of the
Lenders.



Credit Agreement 34




 









 








ARTICLE V

REPRESENTATIONS AND WARRANTIES




     In order to induce the Lenders and the Administrative Agent to enter into this Agreement, each
of the Loan Parties makes the following representations and warranties to the Lenders and the
Administrative Agent as of the Effective Date, each Borrowing Date and (with respect to any
Subsidiary that becomes a Guarantor pursuant to Section 6.11) as of the execution date of
the relevant Accession Agreement, all of which shall survive the execution and delivery of this
Agreement:



     SECTION 5.1 Status and Licensing. (a) The Borrower is a corporation with variable
capital (sociedad anónima de capital variable), (b) Arrendadora is a corporation with variable
capital (sociedad anónima de capital variable), and (c) each of their respective Subsidiaries is
either (i) a corporation with variable capital (sociedad anónima de capital variable) or (ii) a
company with variable capital (sociedad de responsabilidad limitada de capital variable), in each
case duly organized and validly existing under the laws of Mexico; provided that, if the Borrower
gives five (5) Business Days prior written notice to the Administrative Agent, each of the Borrower
and Arrendadora may be transformed into a corporation with limited liability (sociedad de
responsabilidad limitada de capital variable) and the representation provided in this Section
5.1(a) shall be conformed accordingly. Each Loan Party has the power and authority to own its
Property and to transact the business in which it is engaged and is duly qualified or licensed as a
foreign corporation in each jurisdiction in which such qualification or license is required, unless
failure so to have such power and authority or to qualify or be licensed could not reasonably be
expected to have a Material Adverse Effect.



     SECTION 5.2 Corporate Power and Authority; Enforceable Obligations. (a) Each Loan
Party has the corporate power to execute, deliver and perform the terms and provisions of the Loan
Documents to which it is a party, and has taken all necessary corporate action required by its
estatutos sociales to authorize the execution, delivery and performance of the Loan Documents to
which it is a party.



     (b) Each Loan Document to which such Loan Party is a party has been duly authorized, executed
and delivered by such Loan Party.



     (c) Each of the Loan Documents to which such Loan Party is a party constitutes, and each Note
when executed and delivered by it for value received will constitute, legal, valid and binding
obligations of such Loan Party enforceable in accordance with their respective terms, except to the
extent that the enforceability thereof may be limited by applicable bankruptcy, concurso mercantil,
insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights
and by equitable principles (regardless of whether enforcement is sought in equity or at law).



     SECTION 5.3 Compliance with Law and Other Instruments. Neither the execution,
delivery or performance by each Loan Party of the Loan Documents to which it is a party in
accordance with their respective terms, nor the consummation of the transactions herein or therein
contemplated, nor compliance with the terms and provisions hereof or thereof, (a) will contravene
such Loan Party’s charter or by-laws (estatutos sociales) (or other equivalent organizational
documents) or (b) will contravene any Applicable Law to which such Loan Party is subject or any
judgment, decree, order or permit applicable to such Loan Party, or (c) will



Credit Agreement 35




 









 







conflict with or will result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any Property of such Loan Party or KCS pursuant to
the terms of any indenture, mortgage, deed of trust, agreement or other instrument (other than
those permitted or required by this Agreement, including, without limitation, Permitted Liens) to
which such Loan Party is a party or bound or to which it may be subject, except in each case under
clause (b) or (c) where such conflict, breach, default or violation could not
reasonably be expected to have a Material Adverse Effect.




     SECTION 5.4 Litigation and Environmental Matters. There are no actions, suits or
proceedings pending or, to the best knowledge of the Loan Parties, threatened against any Loan
Party or affecting the Property of any Loan Party before any court, tribunal or other Governmental
Authority: (a) with respect to any Loan Document, (b) which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect or (c) which seeks the revocation or
expropriation of the Concession Title. Except with respect to any matters that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect, each Loan
Party (i) has not failed to comply with any Environmental Law or to obtain, maintain or comply with
any permit, license or other approval required under any Environmental Law, (ii) has not become
subject to any Environmental Liability, (iii) has not received notice of any claim with respect to
any Environmental Liability or (iv) knows of no basis for any Environmental Liability. None of the
Loan Parties is in default with respect to any Applicable Law which could reasonably be expected to
have a Material Adverse Effect.



     SECTION 5.5 Governmental Approvals. No order, permission, consent, approval, license,
authorization, registration or validation of, or notice to or filing with, or exemption by, any
Governmental Authority is required to authorize, or is required in connection with, the execution,
delivery and performance by each Loan Party of any Loan Document to which it is a party or the
taking of any action by each Loan Party hereby or thereby contemplated, or, if any of the foregoing
are required, they have been obtained and are in full force and effect.



     SECTION 5.6 Financial Information. (a) The audited financial statements and the
unaudited financial statements delivered in accordance with Section 4.1(a)(viii) (the
“Financial Statements”), including in each case the related schedules and notes, fairly present the
financial condition of the Borrower and its Consolidated Subsidiaries as of the dates of such
statements and the results of their operations for the periods therein stated and have been
prepared in accordance with GAAP, consistently applied throughout the periods involved (unless and
to the extent otherwise stated therein).



     (b) Except as disclosed in this Agreement or in the Financial Statements, there are no
liabilities or obligations with respect to the Borrower and its Subsidiaries of any nature
whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) and the
Borrower is not aware of any basis for the assertion against it or its Subsidiaries of any
liability or obligation of any nature that is not fully disclosed in the Financial Statements
which, in either case, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.



     (c) Since December 31, 2006, there has been no development or event that has had or could
reasonably be expected to have a Material Adverse Effect.



Credit Agreement 36




 









 








     SECTION 5.7 Taxes, Assessments and Fees. Each Loan Party has timely filed all tax
returns and reports required to have been filed and has paid all taxes due by it except such taxes
as are being contested in good faith by appropriate proceedings for which adequate (in the good
faith judgment of such Loan Party) reserves have been made (in accordance with GAAP) or such taxes
the failure of which to pay could not reasonably be expected to have a Material Adverse Effect.



     SECTION 5.8 Investment Company Act. None of the Loan Parties is an “investment
company” required to be registered under the Investment Company Act of 1940, as amended.



     SECTION 5.9 Accuracy of Information. All written information supplied by the Loan
Parties to the Joint Lead Arrangers, the Administrative Agent and/or the Lenders relating to the
Loan Parties, taken as a whole, was true and accurate in all material respects as of the date
supplied, and did not as of such date, and does not, in each case taken as a whole, omit to state
any material information necessary to make the information therein contained, in light of the
circumstances under which such information was supplied, not misleading. It is understood that:
(a) no representation or warranty is made concerning the forecasts, estimates, pro forma
information, projections and statements as to anticipated future performance or conditions, and the
assumptions on which they were based, contained in any such information, reports, financial
statements, exhibits or schedules, except that as of the date such forecasts, estimates, pro forma
information, projections and statements were generated, (i) such forecasts, estimates, pro forma
information, projections and statements were based on the good faith assumptions of the management
of the Borrower and (ii) such assumptions were believed by such management to be reasonable and (b)
such forecasts, estimates, pro forma information and statements, and the assumptions on which they
were based, may or may not prove to be correct.



     SECTION 5.10 Absence of Default. No Default or Event of Default has occurred and is
continuing.



     SECTION 5.11 Ranking; Recourse; Liens. (a) The Obligations of each Loan Party
hereunder and under the other Loan Documents to which it is a party are and will at all times be
unconditional general obligations of such Loan Party, and rank and will at all times rank at least
pari passu in right of payment with all its other senior unsecured Indebtedness, except for
obligations accorded preference by mandatory provisions of law. Except for the Liens created in
connection with the Existing Credit Agreement (which are to be released on the Effective Date or in
connection with the refinancing contemplated hereunder), there is no Lien upon or with respect to
any of the present Property or Indebtedness of any Loan Party or its respective Subsidiaries other
than Liens permitted or required by this Agreement, including, without limitation, Permitted Liens.



     (b) Attached as Schedule 5.11(b) is a complete and accurate list of all Liens of each
Loan Party securing Indebtedness in an amount equal to or greater than US$5,000,000 (or its
equivalent in other currencies) existing on the Effective Date, showing as of the Effective Date
the lienholder thereof, the principal amount of the obligations secured thereby and a brief
description of the Property subject thereto.



     SECTION 5.12 Withholding Tax. As of the Effective Date, there is no tax, levy,
impost, deduction, charge or withholding imposed, levied or made by or in Mexico or any political
subdivision or taxing authority thereof or therein either (a) on or by virtue of the execution or



Credit Agreement 37




 









 




delivery of the Loan Documents or (b) on any payment to be made pursuant to the Loan Documents
to any Person, except that payments of interest under this Agreement or the Notes and fees payable
hereunder and under the Fee Letters will be subject to a Mexican withholding tax at a rate of 4.9%
so long as the Payee, that is not a Mexican Financial Institution or a lender that is not
registered with Hacienda for purposes of Article 196(II) of the Mexican Income Tax Law, (i) is a
foreign commercial bank or other financial institution registered with Hacienda for purposes of
Article 195(I) of the Mexican Income Tax Law (Ley del Impuesto Sobre la Renta), the regulations
thereunder and any administrative rules issued thereunder and (ii) is a resident for tax purposes
of (or its principal place of business, if lending through a branch or agency, is located in) a
country with which Mexico has entered into a treaty for the avoidance of double taxation. As of
the Effective Date, each Loan Party is permitted under Applicable Law, to make all payments
pursuant to the Loan Documents free and clear of all Taxes imposed, levied or made by or in Mexico
or any political subdivision or taxing authority thereof, as provided in each Loan Document,
without any liability to be borne by the payee in connection with such Mexican withholding tax to
the extent that the Loan Party making such payment has complied with its obligations in Section
3.1 of this Agreement to pay to the appropriate Mexican authorities applicable Taxes required
to be paid by such Loan Party.




     SECTION 5.13 Proper Form. The Loan Documents are (or, in the case of any Note, will
be, upon the issuance thereof in accordance herewith) in proper legal form for the enforcement
thereof in Mexico, against each Loan Party; provided that, if any legal proceedings are brought in
a court of Mexico for the enforcement against a Loan Party, of this Agreement, the Fee Letters or
any other Loan Document that is executed in a language other than Spanish, a Spanish translation of
such document prepared by a translator approved by the Mexican court would have to be approved by
such court after such Loan Party has been given the opportunity to be heard with respect to the
accuracy of the translation, and proceedings would thereafter be based on the translated documents.
To ensure the legality, validity, enforceability or admissibility in evidence of this Agreement,
the Fee Letters or any other Loan Document in Mexico it is not necessary that this Agreement, the
Fee Letters or any other Loan Document be filed or recorded with any Governmental Authority in
Mexico or be notarized, or that any stamp or similar tax be paid on or in respect of this
Agreement, the Fee Letters or any other Loan Document.



     SECTION 5.14 Choice of Law. In any action or proceeding involving a Loan Party
arising out of or relating to any Loan Document in any court of Mexico, the Lenders and the
Administrative Agent would be entitled to the recognition and effectiveness of the choice of law
provisions of Section 11.4.



     SECTION 5.15 Immunity. Each Loan Party is subject to suit in Mexico and neither any
Loan Party nor its Property has any right of immunity, on the grounds of sovereignty or otherwise,
from any legal action, suit or proceeding, set-off or counterclaim, the jurisdiction of any
competent court and service of process, attachment or execution in Mexico with respect to its
obligations, liabilities, or any other matter under or arising out of or in connection with any
Loan Document, and to the extent that such Loan Party or its Property may have or may hereafter
become entitled to any such right of immunity it has effectively waived such right under
Section 11.13; provided that the Concession Title may not be transferred to any Person
without the prior consent of the government of Mexico. The waiver by each Loan Party described in
the immediately preceding sentence is a legal, valid and binding obligation thereof.



Credit Agreement 38




 









 







The foregoing waiver is intended to be effective to the fullest extent now or hereafter
permitted by the Applicable Law of any jurisdiction in which any suit, action or proceeding with
respect to any Loan Document may be commenced. The performance of the Loan Documents by the Loan
Parties constitutes private and commercial acts rather than governmental or public acts.




     SECTION 5.16 Status of Concession. The Concession Title is in full force and effect
and no proceeding or, to the best knowledge of the Borrower, investigation seeking the termination
or revocation of the Concession Title has been initiated pursuant to a notice sent to the Borrower.



     SECTION 5.17 Property. (a) Each Loan Party has good title to, or valid leasehold
interests in, all its real and personal property material to its business, except for minor defects
in title that do not interfere with its ability to conduct its business as currently conducted or
to utilize such properties for their intended purposes and that could not reasonably be expected to
have a Material Adverse Effect.



     (b) Each Loan Party owns, or is licensed to use, all trademarks, tradenames, copyrights,
patents and other intellectual property material to its business, and the use thereof by it does
not infringe upon the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.



     (c) As of the Effective Date, each Loan Party maintains insurance with respect to all Property
material to the conduct of its business and Schedule 5.17(c) contains an accurate
description of such insurance coverage, insured amounts and the name of each insurance company with
which each such insurance is maintained.



     SECTION 5.18 Subsidiaries. The Subsidiaries listed on Schedule 5.18 hereto
constitute the only Subsidiaries of each Loan Party as at the Effective Date.



     SECTION 5.19 Federal Regulations. No part of the proceeds of any Loan will be used
for “buying” or “carrying” any “margin stock” within the respective meanings of each of the quoted
terms under Regulation U as now and from time to time hereafter in effect or for any purpose that
violates the provisions of the Regulations of the Board of Governors of the Federal Reserve System.
If requested by any Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation U.



     SECTION 5.20 Labor Matters. Except as, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes
against any Loan Party pending or, to the knowledge of the Loan Parties, threatened; (b) hours
worked by and payment made to employees of the Loan Parties have not been in violation of any
Applicable Law dealing with such matters; and (c) all payments due from any Loan Party on account
of employee health and welfare insurance have been paid or accrued as a liability on the financial
statements of such Loan Party.



Credit Agreement 39




 









 








     SECTION 5.21 Existing Indebtedness. Attached as Schedule 5.21 is a complete
and accurate list of all existing Indebtedness of each Loan Party and its respective Subsidiaries
in excess of US$1,000,000 as of the Effective Date.



ARTICLE VI

AFFIRMATIVE COVENANTS




     Each of the Loan Parties covenants and agrees that, until the payment in full of all
Obligations, and so long as any Commitment is outstanding:



     SECTION 6.1 Senior Obligations. Each Loan Party shall ensure that its obligations
under this Agreement and the Notes shall at all times rank at least pari passu in right of payment
with all its other present and future senior unsecured Indebtedness of such Loan Party, except for
obligations accorded preference by mandatory provisions of law or expressly permitted under this
Agreement.



     SECTION 6.2 Reporting Requirements. The Borrower shall provide to the Administrative
Agent, in sufficient copies for distribution by the Administrative Agent to all Lenders:



     (a) as soon as available, and in any case within 90 days of the end of each fiscal year of the
Borrower, beginning with fiscal year 2007, the consolidated annual financial statements of the
Borrower and its Consolidated Subsidiaries audited and reported on in accordance with GAAP
consistently applied (except as otherwise discussed in the notes to such financial statements),
with the opinion thereon of internationally recognized independent public accountants, which
financial statements shall present fairly in accordance with GAAP the financial condition of the
Borrower and its Consolidated Subsidiaries as at the end of the relevant fiscal year and the
results of the operations of the Borrower and its Consolidated Subsidiaries for such fiscal year;
provided that for so long as the Borrower files a Form 10-K with the Securities and Exchange
Commission, the furnishing by the Borrower to the Administrative Agent of such Form 10-K for each
fiscal year of the Borrower shall satisfy the Borrower’s obligation to provide the financial
statements contemplated in this clause (a);



     (b) as soon as available, and in any case within 45 days of the end of each of the first three
fiscal quarters of each year, beginning with the fiscal quarter ending on June 30, 2007, the
unaudited consolidated financial statements of the Borrower and its Consolidated Subsidiaries in
respect of such fiscal quarter prepared in accordance with GAAP, consistently applied (except as
otherwise discussed in the notes to such financial statements), which financial statements shall
present fairly in accordance with GAAP (subject to absence of footnotes), the financial condition
of the Borrower and its Consolidated Subsidiaries as at the end of the relevant fiscal quarter of
each fiscal year and the results of the operations of the Borrower and its Consolidated
Subsidiaries for such fiscal quarter; provided that for so long as the Borrower files a Form 10-Q
with the Securities and Exchange Commission, the furnishing by the Borrower to the Administrative
Agent of such Form 10-Q for each fiscal quarter of the Borrower shall satisfy the Borrower’s
obligation to provide the financial statements contemplated in this clause (b);



     (c) no later than March 31 of each year, updated financial projections of the Borrower for
each three-year period beginning on January 1 of each fiscal year commencing with such



Credit Agreement 40




 









 







projections for the period starting on January 1, 2008, substantially in the same format
previously delivered to the Lenders;




     (d) concurrently with the delivery of the financial statements pursuant to clauses (a)
and (b) above, a certificate of a Responsible Officer of the Borrower substantially in the
form of Exhibit G, (i) certifying that, to the best of such Responsible Officer’s
knowledge, no Default then exists or, if any Default then exists, specifying the nature and period
of existence thereof and what action has been taken or is proposed to be taken with respect
thereto, and (ii) providing all information and calculations necessary for determining compliance
with the covenants contained in Section 7.1;



     (e) copies of such other financial reports filed by any Loan Party with any Governmental
Authority (including any Mexican or other securities exchange) and which are publicly available
which the Administrative Agent (or any Lender through the Administrative Agent) may from time to
time reasonably request; provided that the information will be furnished in Spanish unless
information is provided publicly in English;



     (f) promptly (and, in any event, within five Business Days) after a Responsible Officer of the
Borrower obtains knowledge of any Default or Event of Default, a certificate signed by a
Responsible Officer of the Borrower, describing such Default or Event of Default and the steps that
the Borrower proposes to take in connection therewith;



     (g) promptly (and, in any event, within five Business Days) after a Responsible Officer of the
Borrower obtains knowledge thereof, notice of any litigation, claim, investigation, arbitration or
other proceeding pending or, to such Responsible Officer’s knowledge, threatened in writing against
any Loan Party: (i) that could give rise to a Lien on any of its Properties, other than Permitted
Liens, or (ii) that could reasonably be expected to have a Material Adverse Effect;



     (h) promptly (and, in any event, within five Business Days) after a Responsible Officer of the
Borrower obtains knowledge thereof, notice of any other event or development that could reasonably
be expected to have a Material Adverse Effect and the actions proposed to be taken with respect
thereto; and



     (i) from time to time, as soon as reasonably practicable, such other information with respect
to the Loan Parties, the Loan Documents and/or the transactions contemplated hereby or thereby as
any Lender (through the Administrative Agent) or the Administrative Agent may reasonably request.



     The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead
Arrangers will make available to the Lenders materials and/or information provided by or on behalf
of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may
be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information
with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby
agrees that (i) all Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof; (ii) by marking Borrower Materials “PUBLIC,”
the Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers
and the Lenders to treat such



Credit Agreement 41




 









 







Borrower Materials as not containing any material non-public information with respect to the
Borrower or its respective securities for purposes of United States Federal and state securities
laws (provided that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 11.15); (iii) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public Investor;” and
(iv) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the
Platform not designated “Public Investor.”




     SECTION 6.3 Use of Proceeds. The Borrower shall use the proceeds of the Loans: (i) to
pay all amounts outstanding under the Existing Credit Agreement and related fees and expenses, (ii)
to pay all amounts outstanding in respect of the Borrower’s 10 1/4% Senior Notes, (iii) to pay all
amounts outstanding under the Bridge Loan Agreement, (iv) to refinance a portion of the 12 1/2%
Senior Notes or (v) for general corporate purposes.



     SECTION 6.4 Conduct of Business and Maintenance of Existence. Each Loan Party shall
(and shall cause its respective Subsidiaries to) (a) continue to engage in business of the same
general type as now conducted by it or authorized by its estatutos sociales or by the Concession
Title and preserve, renew and keep in full force and effect its corporate existence, subject to any
merger or consolidation permitted under Section 7.12, and (b) take all reasonable action to
obtain and maintain all rights, privileges, authorizations and franchises necessary or desirable
for the conduct of its business (including, without limitation, the Concession Title) and comply
with all contractual obligations (including the terms of such Concession Title) binding on it or
its Property, except where the failure to maintain any such rights, privileges, authorizations or
franchises or to comply with contractual obligations, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.



     SECTION 6.5 Maintenance of Government Approvals. Each Loan Party shall (and shall
cause its respective Subsidiaries to) maintain in full force and effect all material governmental
licenses, consents, approvals, permits and authorizations which may be necessary or appropriate
under any Applicable Law for the conduct of its business (including the Concession Title), for the
execution, delivery and performance of this Agreement and the other Loan Documents by each Loan
Party and for the validity or enforceability against it hereof and thereof, and take all necessary
governmental and administrative action in Mexico to make all payments to be made by it hereunder
and thereunder. The Loan Parties shall file all applications necessary for, and shall use their
best efforts to obtain, any additional authorization as soon as possible after determination that
such authorization or approval is required for any Loan Party to perform its obligations hereunder
or under the other Loan Documents, including, but not limited to, any filings necessary to obtain
payment in Dollars in respect of any amounts owing hereunder or under the other Loan Documents.



     SECTION 6.6 Compliance with Laws and Other Instruments. Each Loan Party shall (and
shall cause its respective Subsidiaries to) comply in all material respects with (a) all Applicable
Law (including, without limitation, all applicable Mexican railroad regulations (including the
filing of documents, the fulfillment of investment requirements and the performance of services as
required in the Concession Title and Applicable Law)) and (b) any of the terms, covenants,
conditions or provisions of any indenture, mortgage, deed of trust, agreement or other instrument
to which such Loan Party (or any Subsidiary of such Loan Party)



Credit Agreement 42




 









 







is a party or by which it is bound or to which it may be subject, except, in each case, where
the necessity of compliance therewith is contested in good faith by appropriate proceedings or
where failure to comply could not reasonably be expected to have a Material Adverse Effect.




     SECTION 6.7 Maintenance of Property; Insurance. Each Loan Party shall (and shall
cause its respective Subsidiaries to) (a) keep and maintain all Property material to the conduct of
its business in good working order and condition, ordinary wear and tear excepted, and (b) maintain
insurance with respect to all such Property with financially sound, responsible and reputable
insurance companies in such amounts and covering such risks as is usually carried by companies
engaged in similar businesses and owning and/or operating properties similar to those owned and/or
operated by such Loan Party or such Subsidiary, as the case may be, in the same general areas in
which such Loan Party or such Subsidiary owns and/or operates its properties.



     SECTION 6.8 Maintenance of Books and Records and Inspection Rights. Each Loan Party
shall maintain books, accounts and records in accordance with GAAP. Each Loan Party shall, and
shall cause each of its respective Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior written notice, to visit and inspect its
properties (at the sole expense and risk of the Administrative Agent or such Lender, as the case
may be, with respect to personal injuries that may occur during any such inspection), to examine
and make extracts from its books and records, and to discuss its affairs, finances and condition
with its officers and independent accountants, all during business hours of such Loan Party or such
Subsidiary, as often as reasonably requested; provided, however, that when an Event of Default
exists the Administrative Agent or any Lender (or any of their respective representatives or
independent contractors) may do any of the foregoing at the expense of the Borrower at any time
during normal business hours and without advance notice.



     SECTION 6.9 Payment of Obligations. Each Loan Party shall (and shall cause its
Subsidiaries to) pay their obligations, including tax liabilities, that, if not paid, could
reasonably be expected to result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings and such contest effectively suspends collection of the
contested obligation and the enforcement of any Lien securing such obligation, (b) such Loan Party
or any such Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably
be expected to result in a Material Adverse Effect.



     SECTION 6.10 Environmental Laws. Each Loan Party shall (and shall cause its
respective Subsidiaries to) (a) comply in all material respects with, and ensure compliance in all
material respects by all tenants and subtenants, if any, with, all applicable Environmental Laws,
and obtain and comply in all material respects with and maintain, and ensure that all tenants and
subtenants obtain and comply in all material respects with and maintain, any and all licenses,
approvals, consents, notifications, authorizations, registrations or permits required by applicable
Environmental Laws, and (b) conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws and promptly comply
in all material respects with all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws, except in each case where the necessity of compliance therewith is
contested in good faith by appropriate proceedings or where failure to comply could not reasonably
be expected to have a Material Adverse Effect.



Credit Agreement 43




 









 








     SECTION 6.11 Additional Guarantors. The Borrower shall cause additional Subsidiaries
of the Borrower to accede to this Agreement as Guarantors and agree to be bound by all such terms
and conditions hereof which are applicable to the Guarantors to the extent necessary to cause the
Borrower’s Obligations to be, at all times until their full satisfaction, Guaranteed by
Subsidiaries of the Borrower that represent, in the aggregate with the Borrower, at least 90% of
the total assets of the Borrower and its Consolidated Subsidiaries, Consolidated EBITDA and
Consolidated Net Income, in each case measured as of the close of each fiscal quarter of the
Borrower and its Consolidated Subsidiaries. In furtherance of the foregoing undertaking, each such
Guarantor shall, within twenty Business Days after the issuance of the financial statements
indicating the obligation of an additional Subsidiary or Subsidiaries to become an additional
Guarantor(s) hereunder: (a) execute an Accession Agreement substantially in the form of Exhibit
F hereto (an “Accession Agreement”), (b) if requested by a Lender, sign as guarantor (por aval)
the Note(s) of such Lender and (c) provide to the Administrative Agent favorable opinions of New
York counsel and counsel from the jurisdiction of organization of such Guarantor as to
enforceability and due authorization, respectively, of such Guarantee, and as to such other matters
as the Administrative Agent may reasonably request.



ARTICLE VII

NEGATIVE COVENANTS




     Each of the Loan Parties covenants and agrees that, until the payment in full of all
Obligations, and so long as any Commitment is outstanding:



     SECTION 7.1 Financial Covenants. (a) Consolidated Interest Coverage Ratio.
The Consolidated Interest Coverage Ratio of the Borrower and its Consolidated Subsidiaries as of
the last day of any fiscal quarter of the Borrower shall not be less than: (i) for each fiscal
quarter ending on or before March 31, 2008, 2.25:1x, and (ii) for each fiscal quarter thereafter,
2.50:1x.



     (b) Consolidated Fixed Charge Coverage Ratio. The Consolidated Fixed Charge Coverage
Ratio of the Borrower and its Consolidated Subsidiaries as of the last day of any fiscal quarter
shall not be less than 1.0:1x.



     (c) Consolidated Leverage Ratio. The Consolidated Leverage Ratio of the Borrower and
its Consolidated Subsidiaries, as of the last day of any fiscal quarter of the Borrower, shall not
exceed: (i) for each fiscal quarter ending on or before March 31, 2008, 3.75:1x, and (ii) for each
fiscal quarter thereafter, 3.50:1x.



     (d) The financial covenants set forth in this Section 7.1 shall be calculated in
Dollars and, to the extent any amounts necessary for the calculation thereof are denominated in a
currency other than Dollars, such amounts shall be converted into Dollars based on (i) the Exchange
Rate as of the close of business on the relevant date (for balance sheet items) and (ii) the
average Exchange Rate for the relevant period (for income statement items).



     SECTION 7.2 Margin Regulations. The Borrower shall not use proceeds of the Loans
hereunder for any purpose which would result in any violation of Regulations T, U or X of the Board
of Governors of the Federal Reserve System or to extend credit to others for any such purpose. The
Borrower will not engage in, or maintain as one of its important activities, the business of
extending credit for the purpose of purchasing or carrying any margin stock.



Credit Agreement 44




 









 








     SECTION 7.3 Limitation on Restricted Payments. None of the Loan Parties, nor any of
their respective Subsidiaries, will declare or make, or otherwise set apart assets for a sinking or
other analogous fund for the making of, any Restricted Payment to or for the benefit of any Person,
except:



     (a) any Restricted Payments made by a Subsidiary of the Borrower to the Borrower or by any
Subsidiary of the Borrower to a Wholly Owned Subsidiary or to such Subsidiary’s parent corporation
which is itself a Subsidiary of the Borrower; and



     (b) the declaration and payment of dividends (the “Additional Dividends”) to its shareholders
by the Borrower for any fiscal quarter of the Borrower commencing after March 31, 2008; provided
that (i) the amount of the Additional Dividends shall not exceed an aggregate amount equal to (A)
US$20,000,000 plus 50% of Consolidated Net Income accrued on a cumulative basis during the period
(deemed for purposes of this Section 7.3(b) to be one accounting period) commencing on
January 1, 2005 and ending on the last day of the fiscal quarter immediately preceding the date of
declaration of such Additional Dividends (each such date, a “Dividend Accrual Termination Date”)
less (B) the aggregate amount of any dividends (including Additional Dividends) declared or
distributed during the period beginning on January 1, 2005 and ending on the last day of the fiscal
quarter immediately preceding any such Dividend Accrual Termination Date; (ii) the Borrower shall
have delivered to the Administrative Agent the applicable financial statements for the fiscal
quarter ending on such Dividend Accrual Termination Date in accordance with Section 6.2;
and (iii) as of the time of the making of such dividend, no Default or Event of Default shall exist
or would exist after the making thereof; provided that any breach of the covenant set forth in
Section 7.1(b) that is attributable solely to the payment of cash dividends made by the
Borrower as set forth in clause (e) of the definition of “Consolidated Fixed Charges” shall
not preclude or otherwise limit the payment of Additional Dividends under this Agreement and such
breach shall not be deemed a Default or an Event of Default under this Agreement. Any Additional
Dividends payable hereunder shall be payable during the fiscal quarter in which the date of
declaration of such Additional Dividends occurred.



     SECTION 7.4 Limitation on Investments. Each of the Loan Parties shall not (nor shall
any of their respective Subsidiaries) make any Investment in any Person other than:




	 	(a)	 	Investments existing on the Effective Date and set forth on Schedule 7.4;
	 
	 	(b)	 	Temporary Cash Investments;
	 
	 	(c)	 	stock, obligations or securities received in satisfaction of judgments; and
	 
	 	(d)	 	Investments in any Loan Party.





     SECTION 7.5 Optional Payments and Modifications of Certain Debt Instruments. None of
the Loan Parties shall (nor shall any of their respective Subsidiaries) make or offer to make any
optional or voluntary prepayment of any Indebtedness (other than the Loans hereunder and
Indebtedness permitted under Section 7.9(d) and (e)), except pursuant to a
refinancing of Indebtedness permitted by Section 6.3 or 7.9(h), or amend, modify,
waive or otherwise change, or consent or agree to any amendment, modification, waiver or other
change to, any of the terms of any existing Indebtedness in a manner that could reasonably be
expected to be materially adverse to the Lenders hereunder (it being understood that, except in
respect of Indebtedness



Credit Agreement 45




 









 







permitted under Section 7.9(d) and (e), any amendment to any existing
Indebtedness that purports to shorten the maturity of any of the foregoing, shall be deemed to be
materially adverse to the Lenders).




     SECTION 7.6 Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries. None of the Loan Parties shall (nor shall any of their Subsidiaries) create or
otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any Subsidiary to (a) pay dividends or make any other distributions
permitted by Applicable Law on any Equity Interests of such Subsidiary owned by such Loan Party or
any other Subsidiary of such Loan Party; (b) pay any Indebtedness owed to the Borrower or any
Subsidiary of the Borrower; (c) make loans or advances to the Borrower or any Subsidiary of the
Borrower; or (d) transfer any of its Property to the Borrower or any Subsidiary of the Borrower,
except for the following:




     (i) any such encumbrance or restriction existing on the Effective Date and set forth on
Schedule 7.6;




     (ii) any such encumbrance or restriction existing in the Senior Notes Indentures and
any extensions, refinancings, renewals or replacements thereof permitted by Section
7.9(h); provided that the encumbrances and restrictions in any such extensions,
refinancings, renewals or replacements are no less favorable in any material respect to the
Lenders than those encumbrances or restrictions that are then in effect and that are being
extended, refinanced, renewed or replaced;




     (iii) any such encumbrance or restriction existing with respect to any Person or the
Property of such Person acquired by such Loan Party or any of its Subsidiaries, existing at
the time of such acquisition and not incurred in contemplation thereof, which encumbrance or
restriction is not applicable to any Person or the Property of any Person other than such
Person or the Property of such Person so acquired; or




     (iv) with respect to a Subsidiary, any such encumbrance or restriction imposed pursuant
to an agreement that has been entered into for the sale or disposition of all or
substantially all of the Equity Interests or Property of such Subsidiary not prohibited by
any other provision of this Agreement.



     SECTION 7.7 Limitation on Transactions with Affiliates. None of the Loan Parties
shall (nor shall any of their respective Subsidiaries) enter into, renew or extend any transaction
(including, without limitation, the purchase, sale, lease or exchange of Property, or the rendering
of any service) with any holder (or any Affiliate of such holder) of 5.0% or more of any class of
Equity Interests of such Loan Party or with any Affiliate or Subsidiary of such Loan Party (other
than a Loan Party or Wholly Owned Subsidiary of a Loan Party), except upon fair and reasonable
terms no less favorable to such Loan Party or such Subsidiary than could be obtained, at the time
of such transaction or, if such transaction is pursuant to a written agreement, at the time of the
execution of the agreement providing therefor, in a comparable arm’s-length transaction with a
Person that is not such a holder, Affiliate or Subsidiary; provided that the foregoing limitations
shall not prevent the Borrower from selling its 49% equity interest in Mexrail to KCS.



Credit Agreement 46





 










 





     SECTION 7.8 Limitation on Liens. None of the Loan Parties shall (nor shall any of
them permit any Subsidiary to) create, incur, assume or suffer to exist any Lien on any of its
respective Properties, whether now owned or hereafter acquired, except:



     (a) Liens on the Property of any Loan Party (or Subsidiary of a Loan Party) existing on the
Effective Date;



     (b) Liens granted on or after the Effective Date on any Property of a Loan Party or any
Subsidiary created in favor of the Lenders to secure the Obligations;



     (c) Liens upon Property, other than New Equipment, of any Loan Party or any Subsidiary of a
Loan Party acquired after the Effective Date; provided that (i) such Liens are created solely for
the purpose of securing Indebtedness of such Loan Party or Subsidiary not in excess of
US$10,000,000 in the aggregate (for all Loan Parties and their Subsidiaries) at any time
outstanding which is incurred to finance the cost (including the cost of improvement, lease or
construction) of the Property subject thereto and such Liens are created prior to, at the time of
or within 90 days after the later of the acquisition, the completion of construction or the
commencement of full operation or the lease of such Property, (ii) the principal amount of the
Indebtedness secured by such Lien does not exceed 100.0% of such cost and (iii) any such Lien shall
not extend to or cover any Property other than such item of Property and any improvements on such
item;



     (d) Liens securing payment of the Indebtedness (including Capitalized Leases) of the type
permitted and described in clause (i) of Section 7.9; provided that (i) such Liens
are created prior to, at the time of or within 90 days (or 180 days in the case of a sale-leaseback
transaction) after the later of the acquisition, the completion of construction or the commencement
of full operation or the lease of any such New Equipment, (ii) the principal amount of the
Indebtedness secured by such Lien does not exceed 100.0% of the cost of such New Equipment; and
(iii) any such Lien shall not extend to or cover any Property other than such New Equipment and any
improvements on such item.



     (e) Liens on Property of any Person existing at the time such Person becomes, or becomes a
part of, a Subsidiary of a Loan Party;



     (f) Any interest or title of a lessor in the Property, other than New Equipment, of a Loan
Party (or Subsidiary of a Loan Party) subject to any Capitalized Lease; provided that the aggregate
Attributable Debt of such Capitalized Leases does not exceed US$10,000,000 in the aggregate at any
time outstanding;



     (g) Liens on Property securing Indebtedness of any Loan Party or Subsidiary of a Loan Party
permitted by Section 7.9 in an amount not in excess of US$5,000,000 in the aggregate (for
all Loan Parties and their Subsidiaries); and



     (h) Permitted Liens.



     SECTION 7.9 Limitation on Indebtedness. None of the Loan Parties shall (nor shall any
of them permit any Subsidiary to) create, incur, assume or suffer to exist Indebtedness except:



     (a) Indebtedness of any Loan Party existing on the Effective Date;



Credit Agreement 47




 









 





     (b) Indebtedness secured by Liens permitted by Sections 7.8(c), 7.8(e) and
7.8(f);



     (c) Capitalized Leases of any Loan Party secured by Liens permitted by Section 7.8(f);



     (d) Indebtedness of any Loan Party or Subsidiary of a Loan Party under Swap Agreements
(excluding equity-based Swap Agreements) entered into in the ordinary course of business; provided
that such Swap Agreements (i) are designed solely to protect such Loan Party or Subsidiary against
the fluctuations in (A) foreign currency exchange rates, (B) interest rates or (C) rates in respect
of fuel purchases or other acquisitions of fuel in the ordinary course of business and (ii) do not
increase the Indebtedness of any Loan Party or any Subsidiary outstanding at any time other than as
a result of fluctuations in foreign currency exchange rates, interest rates or rates in respect of
fuel purchases or other acquisitions of fuel or by reason of fees, indemnities and compensation
payable thereunder;



     (e) short-term Indebtedness of any Loan Party or Subsidiary of a Loan Party for working
capital purposes, including factoring or other similar arrangements with respect to current account
receivables, not to exceed US$15,000,000 in the aggregate for all Loan Parties and Subsidiaries at
any time outstanding;



     (f) unsecured Indebtedness of any Loan Party or Subsidiary of a Loan Party; provided that
after taking into account the unsecured Indebtedness proposed to be incurred in accordance with
this clause (f) on a pro forma basis), (i) no Default shall then exist and be continuing or
would exist upon the incurrence of such Indebtedness and (ii) immediately following the incurrence
of and giving effect to such Indebtedness on a pro forma basis as of the last day of the
immediately preceding fiscal quarter, the Borrower would be in compliance with the financial
covenants set forth in Section 7.1;



     (g) other Indebtedness of the Borrower or any Subsidiary of the Borrower which provides for no
amortization of principal on or prior to the Tranche B Maturity Date and the proceeds of which are
used to prepay Loans in accordance with Section 2.8(a);



     (h) Indebtedness of the Borrower (the “New Indebtedness”) which (i) is unsecured and incurred
to refinance all or any portion of the Senior Notes, Indebtedness permitted under clause
(f) or such unsecured New Indebtedness or (ii) is incurred to refinance all or any portion of
Indebtedness permitted under clauses (a), (b), (c), (d),
(e) and (g) above or such New Indebtedness permitted under this clause
(ii); provided that, in each case under clauses (i) and (ii): (A) the aggregate
principal amount of the New Indebtedness shall be less than or equal to the sum of (1) the
aggregate amount of the Indebtedness (including principal and accrued interest) being refinanced,
(2) the aggregate amount of unused commitments under the Indebtedness being refinanced, (3)
prepayment fees or premiums, consent fees and/or other costs and expenses directly related to the
Indebtedness being refinanced and (4) reasonable fees, expenses and costs directly related to the
entering into the New Indebtedness; (B) such New Indebtedness shall have an average weighted
maturity equal to or greater than the average weighted maturity of the Indebtedness so refinanced;
and (C) the terms of the New Indebtedness following such refinancing shall in all other material
respects be no less favorable to the Lenders than such Indebtedness prior to the refinancing
thereof; and



Credit Agreement 48




 









 




     (i) Indebtedness of any Loan Party or Subsidiary of a Loan Party incurred to finance such
Person’s acquisition of New Equipment in an aggregate principal amount not to exceed $300,000,000;
provided that the amount of any such Indebtedness incurred in any calendar year shall not exceed
the amount set forth below opposite such calendar year:



	 	 	 	 	 
	2007
	 	US$	50,000,000	 
	2008
	 	US$	75,000,000	 
	2009
	 	US$	50,000,000	 
	2010
	 	US$	75,000,000	 
	2011
	 	US$	50,000,000	 





; provided, further, that (i) in any such calendar year, any portion of the aggregate principal
amount of such Indebtedness permitted to be incurred in such calendar year but not incurred in such
calendar year may be carried forward to subsequent calendar years; and (ii) such Indebtedness shall
have an average life of not less than five years and a final maturity of not less than ten years
after the purchase date for the item of New Equipment for which such Indebtedness was incurred.




     SECTION 7.10 Limitation on Sale-Leaseback Transactions. None of the Loan Parties
shall (nor shall any of them permit any Subsidiary to) enter into any sale-leaseback transaction
involving any Property of any Loan Party or Subsidiary of a Loan Party, whether now owned or
hereafter acquired, whereby such Loan Party or Subsidiary sells or transfers such Property and then
or thereafter leases such Property or any part thereof or any other Property which such Loan Party
or Subsidiary, as the case may be, intends to use for substantially the same purpose or purposes as
the Property sold or transferred, except (a) to the extent that the Attributable Debt created under
such sale-leaseback transaction would be permitted pursuant to Section 7.9(c) and (b) the
Borrower or such Subsidiary applies the Net Cash Proceeds received from any such sale (other than
from a sale-leaseback of Property acquired by the Borrower after the Effective Date which is
concluded within 180 days following the date of the acquisition of such Property) to prepay the
Loans in accordance with, and to the extent required by, Section 2.8(a).



     SECTION 7.11 Limitation on Asset Sales. None of the Loan Parties shall (nor shall any
of them permit any Subsidiary to) consummate any Asset Sale, except:



     (a) sales of obsolete, surplus, used (with material impairment of value or utility), defunct,
damaged or worn-out Property in the ordinary course of business;



     (b) sales of inventory in the ordinary course of business;



     (c) sales of current accounts receivable pursuant to factoring or similar working capital
financing arrangements permitted by Section 7.9(e);



     (d) any Asset Sale to a Loan Party;



Credit Agreement 49




 









 





     (e) any Asset Sale of Property as part of a sale-leaseback transaction where all such Property
was acquired by the Borrower after the Effective Date and where such sale-leaseback transaction is
concluded within 180 days following the date of the acquisition of such Property; and



     (f) any other Asset Sales if (i) the consideration received by the Loan Party or such
Subsidiary is at least equal to the fair market value of the assets sold or disposed of; (ii) at
least 70.0% of the consideration received consists of cash or Temporary Cash Investments; and (iii)
the Net Cash Proceeds of such Asset Sale are applied in accordance with Section 2.8(a);
provided that in no event shall any Loan Party or any Subsidiary enter into any Asset Sale with
respect to future accounts receivables to be generated by it; and provided further, that
clauses (i) and (ii) shall not apply to a sale of the Borrower’s 49% equity
interest in Mexrail to KCS.



     SECTION 7.12 Consolidation, Merger and Sale of Assets. None of the Loan Parties shall
(nor shall any of them permit any Subsidiary to) consolidate with, merge with or into, or sell,
convey, transfer, lease or otherwise dispose of all or substantially all of its Property (as an
entirety or substantially an entirety in one transaction or a series of related transactions) to,
any Person or permit any Person to merge with or into any Loan Party or any Subsidiary, except that
(provided that no Default exists immediately before or would exist immediately after any of the
following):



     (a) any Subsidiary of a Loan Party may be merged or consolidated with or into such Loan Party
(provided that such Loan Party shall be the continuing or surviving corporation) or with or into
any Wholly Owned Subsidiary of such Loan Party (provided that the Wholly Owned Subsidiary shall be
the continuing or surviving corporation);



     (b) any Subsidiary may dispose of any or all of its Property (i) to a Loan Party or any Wholly
Owned Subsidiary of such Loan Party (upon voluntary liquidation or otherwise) or (ii) pursuant to a
disposition permitted by Section 7.11 and in a transaction not otherwise prohibited by any
provision of this Agreement; and



     (c) Arrendadora and the Borrower may merge or consolidate with or into, or sell or transfer
all or substantially all of its Property to, each other; provided that the Borrower is the entity
surviving such merger or consolidation or the entity to which such Property has been so sold or
transferred.



     SECTION 7.13 Lines of Business. None of the Loan Parties shall (nor shall any of them
permit any Subsidiary to) enter into any business, either directly or through any Subsidiary,
except for those businesses in which such Loan Party or Subsidiary is engaged on the date of this
Agreement or that are reasonably related thereto.



ARTICLE VIII

EVENTS OF DEFAULT




     SECTION 8.1 Events of Default. The following specified events shall be “Events of
Default” for the purposes of this Agreement:



     (a) (i) Any payment of any principal of the Loans shall not be made in full when due, or (ii)
the Borrower shall default for three Business Days or more in the payment of interest on



Credit Agreement 50




 









 




the Loans (or any amounts payable pursuant to Section 3.1(a)) or (iii) any Loan Party
shall default for ten calendar days or more in the payment of any other amount whatsoever payable
(or to be deposited) under the Loan Documents; or




     (b) Any representation or warranty made or deemed made by any Loan Party herein or in any
other Loan Document or that is contained in any certificate, document or financial or other
statement furnished at any time pursuant to or in connection with this Agreement or any other Loan
Document shall prove to have been incorrect in any material respect on or as of the date made or
deemed made; or



     (c) Any Loan Party shall default in the observance or performance of any covenant contained in
Sections 6.1, 6.2(f), 6.3, 6.4(a) or Article VII of this
Agreement; or



     (d) Any Loan Party shall default in the observance or performance of any other covenant or
agreement contained in any Loan Document to which it is a party (other than as provided in
clauses (a), (b) and (c)), and such default shall continue unremedied for a
period of 30 days or more after written notice to the Borrower from the Administrative Agent; or



     (e) Any Loan Party shall (i) default in any payment of principal of or interest on any
Indebtedness outstanding in an aggregate principal amount of at least US$10,000,000 (or the
equivalent thereof in another currency) (other than the Loans and any other amounts owed under the
Loan Documents), including in the payment of any Guarantee of such Indebtedness, beyond the period
of grace, if any, provided in the instrument or agreement under which such Indebtedness was
created; or (ii) default in the observance or performance of any other agreement or condition
relating to any such Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or condition exist, in
each case beyond any applicable grace period or cure period, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such Indebtedness, including
the beneficiary or beneficiaries of any Guarantee (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause such Indebtedness (or, with respect to a
Guarantee, the Indebtedness that is the subject matter of such Guarantee) to become due prior to
its stated maturity; or



     (f) (i) Any Loan Party shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, concurso
mercantil, insolvency, reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) in any jurisdiction seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or for all or any
substantial part of its Property, or any Loan Party shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against any Loan Party in any jurisdiction any
case, proceeding or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or appointment or (B) to the
extent applicable, remains undismissed, undischarged, unbonded or is not stayed for a period of 60
days; or (iii) there shall be commenced against any Loan Party in any jurisdiction any case,
proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its Property which results in the entry of
an



Credit Agreement 51




 









 




order for any such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) any Loan Party shall take any action
in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts
set forth in clause (i), (ii) or (iii) above; or (v) any Loan Party shall
admit in writing its inability to pay its debts as they become due; or




     (g) One or more judgments, orders, decrees, awards, settlements and/or agreements to settle
(including any relating to any arbitration), shall be entered against any Loan Party in any
jurisdiction involving in the aggregate a liability (not paid or substantially covered by
insurance) of US$10,000,000 (or an amount in another currency equivalent thereto) or more, and
shall not have been vacated, discharged, stayed or bonded pending appeal within 90 days from the
entry thereof; or



     (h) Any Governmental Authority shall (i) condemn, nationalize, seize or otherwise expropriate
any substantial portion of the Property or the capital stock of any Loan Party and such action is
not reversed within a period of 60 days or (ii) take any action that would prevent any Loan Party
from carrying on, or would have a material adverse effect on, the rights conferred on the Borrower
under, or the material terms of, the Concession Title, including any action that would result in
the Concession Title ceasing to grant the Borrower the rights originally provided therein or the
Concession Title being terminated or the rights originally provided therein as exclusive to the
Borrower becoming non-exclusive; or



     (i) A Change of Control shall occur; or



     (j) The validity of any Loan Document shall be contested by any Loan Party or any Governmental
Authority or any Loan Party shall deny liability under any Loan Document to which it is a party or
any Loan Document shall for any reason be terminated or become invalid, ineffective or
unenforceable; provided that, in the case of any contest by a Governmental Authority, such contest
is not dismissed within a period of 75 days; or



     (k) Any governmental or other authorization, consent, license, permit, concession, approval
(including any foreign exchange approval) or authorization which is necessary or appropriate under
any Applicable Law for the execution, delivery or performance by any Loan Party of any material
obligation under any Loan Document to which it is a party or to make any Loan Document legal,
valid, enforceable and admissible in evidence shall not be obtained or shall be withdrawn or shall
cease to be in full force and effect or shall be modified in a manner which, in each case, could
reasonably be expected to have a Material Adverse Effect; or



     (l) Any restriction or requirement not in effect on the Effective Date is imposed, whether by
legislative enactment, decree, regulation, order or otherwise, which limits the availability or the
transfer of foreign exchange by any Loan Party in a manner that would reasonably be expected to
materially adversely affect the payment of such Loan Party’s obligations under any Loan Document to
which it is a party.



     SECTION 8.2 Remedies. (a) If any Event of Default under Section 8.1(f) has
occurred and is continuing, automatically the Commitments shall immediately terminate and the
Loans, together with accrued interest thereon and any fees and all other Obligations accrued
hereunder, under the Notes and under all other Loan Documents shall immediately become due and
payable.



Credit Agreement 52




 









 





     (b) If any Event of Default other than under Section 8.1(f) has occurred and is
continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the
Majority Lenders, declare: (i) the Commitments to be terminated immediately, whereupon the
Commitments shall immediately terminate, and/or (ii) the principal amount of the Loans to be
forthwith due and payable, whereupon such principal amount, together with accrued interest thereon
and any fees and all other Obligations accrued hereunder, under the Notes and under all other Loan
Documents, shall become immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived.



ARTICLE IX

GUARANTEE




     SECTION 9.1 Guarantees. (a) For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and to induce the Lenders to enter into this
Agreement, each of the Guarantors, jointly and severally, hereby absolutely, unconditionally and
irrevocably Guarantees the full and punctual payment and performance (whether at stated maturity,
upon acceleration or otherwise) of all Obligations, in each case as primary obligor and not merely
as surety and with respect to all such Obligations howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due
(collectively, the “Guaranteed Obligations”). This is a guarantee of payment and not merely of
collection.



     (b) All Guaranteed Obligations shall be payable in the manner required for payments by the
Borrower hereunder, including: (i) the obligation to make all such payments in Dollars, free and
clear of, and without deduction for, any Taxes, and (ii) the obligation to pay interest at the
Default Rate where applicable.



     SECTION 9.2 Guarantees Unconditional. The Guaranteed Obligations shall be
unconditional and absolute and, without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by:



     (a) any extension, renewal, settlement, compromise, waiver or release in respect of any
Obligation of a Loan Party under the Loan Documents and/or any Commitment(s) under the Loan
Documents, by operation of law or otherwise (other than with respect to any such extension,
renewal, settlement, compromise, waiver or release agreed in accordance with the terms hereunder as
expressly applying to the obligations of the Guarantors under this Article IX);



     (b) any modification or amendment of or supplement to this Agreement or any other Loan
Document (other than with respect to any modification, amendment or supplement agreed in accordance
with the terms hereunder as expressly applying to the obligations of the Guarantors under this
Article IX);



     (c) any change in the corporate existence, structure or ownership of the Borrower or any other
Person, or any event of the type described in Section 8.1(f) with respect to any Person;



     (d) the existence of any claim, set-off or other rights that any Guarantor may have at any
time against the Borrower, the Administrative Agent or any other Person, whether in connection
herewith or with any unrelated transactions;



Credit Agreement 53




 









 





     (e) any invalidity or unenforceability relating to or against any Loan Party for any reason of
any Loan Document, or any Applicable Law purporting to prohibit the performance by any Loan Party
of any of its Obligations (other than any such invalidity or unenforceability with respect solely
to the obligations of the Guarantors under this Article IX); or



     (f) any other act or omission to act or delay of any kind by any Loan Party, the
Administrative Agent or any other Person or any other circumstance whatsoever that might, but for
the provisions of this Section 9.2, constitute a legal or equitable discharge of the
obligations of any Loan Party under the Loan Documents.



     SECTION 9.3 Discharge Only upon Payment in Full; Reinstatement In Certain
Circumstances. The obligations of the Guarantors hereunder shall remain in full force and
effect until all of the Borrower’s Obligations under the Loan Documents shall have been paid or
otherwise performed in full and all of the Commitments shall have terminated. If at any time any
payment made under this Agreement or any other Loan Document is rescinded or must otherwise be
restored or returned upon the insolvency, bankruptcy, concurso mercantil, reorganization,
insolvency, custodianship, liquidation, receivership, dissolution, winding up or relief of debtors
or similar event of a Loan Party or any other Person or otherwise, then the obligations of the
Guarantors hereunder with respect to such payment shall be reinstated at such time as though such
payment had been due but not made at such time.



     SECTION 9.4 Waiver by the Guarantors. (a) Each of the Guarantors hereby irrevocably
and unconditionally waives, to the fullest extent permitted by Applicable Law: (i) notice of
acceptance of the Guarantee provided in this Article IX and notice of any liability to
which this Guarantee may apply, (ii) all notices that may be required by Applicable Law or
otherwise to preserve intact any rights of any Beneficiary against any Loan Party, including any
demand, presentment, protest, proof of notice of non-payment, notice of any failure on the part of
any Loan Party to perform and comply with any covenant, agreement, term, condition or provision of
any agreement and any other notice to any other party that may be liable in respect of the
Obligations Guaranteed hereby (including any Loan Party) except any of the foregoing as may be
expressly required hereunder, (iii) any right to the enforcement, assertion or exercise by any
Beneficiary of any right, power, privilege or remedy conferred upon such Person under the Loan
Documents or otherwise, (iv) any requirement that any Beneficiary exhaust any right, power,
privilege or remedy, or exhaust or apply any assets of the Borrower or any other Guarantor or
mitigate any damages resulting from a default, under any Loan Document, or against any Loan Party
or any other Person under or in respect of any Loan Document or otherwise (including any
requirement that any action be initiated and/or completed against the Borrower prior to any action
being initiated against any Guarantor), and (v) any requirement that claims or liabilities be
divided among Guarantors.



     (b) Each of the Guarantors expressly acknowledges that the Guarantee provided in this
Article IX is governed by the laws of the State of New York and expressly agrees that any
rights and privileges that it might otherwise have under the laws of Mexico shall not be applicable
to this Guarantee, including, but not limited to, any benefit of
orden, excusión, división, quita,
novación, espera and modificación which may be available to it under articles 2813, 2814, 2815,
2817, 2818, 2820, 2821, 2822, 2823, 2827, 2836, 2840, 2842, 2845, 2846, 2847, 2848, 2849 or any
other applicable articles of the Federal Civil Code of Mexico and the



Credit Agreement 54




 









 




corresponding articles under the Civil Code in effect for the Federal District of Mexico and
in all other states of Mexico.




     SECTION 9.5 Subrogation. Upon any Guarantor’s making payment under this Article
IX, the payor shall be subrogated to the rights of the payee against the Borrower with respect
to such obligation; provided that such Guarantor shall not enforce any payment by way of
subrogation, indemnity, contribution or otherwise, or exercise any other right, against the
Borrower or any other Loan Party (or otherwise benefit from any payment or other transfer arising
from any such right) so long as any Obligations under the Loan Documents remain unpaid and/or
unsatisfied.



     SECTION 9.6 Stay of Acceleration. If acceleration of the time for payment of any
amounts payable under the Loan Documents is stayed due to any event described in Section
8.1(f), then all such amounts otherwise subject to acceleration under this Agreement shall
nonetheless be payable by the Guarantors hereunder immediately upon demand by the Administrative
Agent.



ARTICLE X

THE ADMINISTRATIVE AGENT




     SECTION 10.1 Appointment and Authority. Each of the Lenders hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders,
and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of
any of such provisions.



     SECTION 10.2 Rights as a Lender. Each Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,
include each Person serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or
in any other advisory capacity for and generally engage in any kind of business with any Loan Party
or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.



     SECTION 10.3 Exculpatory Provisions. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other Loan Documents.
Without limiting the generality of the foregoing, the Administrative Agent:



     (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in



Credit Agreement 55




 









 




writing by the Majority Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Loan Documents); provided that the Administrative
Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any Loan Document or
Applicable Law; and




     (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, or be liable for the failure to disclose, any information relating to any of the
Loan Parties or any of their respective Affiliates that is communicated to or obtained by the
Person serving as the Administrative Agent or any of its Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Majority Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 8.2 and 11.3) or (ii) in
the absence of its own gross negligence or willful misconduct. The Administrative Agent shall not
be deemed to have knowledge of any Default unless and until notice describing such Default is given
to the Administrative Agent by a Loan Party or a Lender.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



     SECTION 10.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by it to be genuine
and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and believed by it to have
been made by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan that by its terms must
be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such
condition is satisfactory to such Lender unless the Administrative Agent shall have received notice
to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may
consult with legal counsel (who may be counsel for any Loan Party), independent accountants and
other experts selected by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.



     SECTION 10.5 Delegation of Duties. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other Loan Document



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by or through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its
rights and powers by or through their respective Related Parties. The exculpatory provisions of
this Article shall apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities as the
Administrative Agent.




     SECTION 10.6 Resignation of Administrative Agent. The Administrative Agent may at any
time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such
notice of resignation, the Majority Lenders shall have the right, in consultation with the
Borrower, to appoint a successor, which shall be a bank with an office (or a subsidiary) in the
United States, or an Affiliate of any such bank with an office (or a subsidiary) in the United
States. If no such successor shall have been so appointed by the Majority Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent gives notice of
its resignation, then the retiring Administrative Agent may on behalf of the Lenders or appoint a
successor Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (b) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be made
by or to each Lender directly, until such time as the Majority Lenders appoint a successor
Administrative Agent as provided for above in this Section 10.6. Upon the acceptance of a
successor’s appointment as the Administrative Agent hereunder, such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its
duties and obligations hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section 10.6). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 11.2 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as the
Administrative Agent.



     SECTION 10.7 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.



Credit Agreement 57




 









 





     SECTION 10.8 No Other Duties, Etc. Anything herein to the contrary notwithstanding,
none of the Joint Lead Arrangers shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent or a Lender.



     SECTION 10.9 Administrative Agent May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization, concurso mercantil,
quiebra, arrangement, adjustment, composition or other judicial proceeding relative to any Loan
Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be
due and payable as herein expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made the demand on the Borrower) shall be entitled and empowered,
by intervention in such proceeding or otherwise:



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, and all other Obligations that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the claims of the
Beneficiaries (including any claim for the reasonable compensation, expenses, disbursements and
advances of the Beneficiaries and their respective agents and counsel and all other amounts due to
the Beneficiaries under Sections 2.12 and 11.2) allowed in such judicial
proceeding; and



     (b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Beneficiary to make such payments to
the Administrative Agent and, in the event that the Administrative Agent shall consent to the
making of such payments directly to the Beneficiaries, to pay to the Administrative Agent any
amount due for the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 2.12 and 11.2.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, concurso
mercantil, quiebra, arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.



ARTICLE XI

MISCELLANEOUS




     SECTION 11.1 Financial Data. Except as otherwise provided herein, financial data
required hereby shall be prepared both as to classification of items and as to amount in accordance
with GAAP.



     SECTION 11.2 Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses.
Each Loan Party agrees, jointly and severally, to pay (i) all reasonable out of pocket expenses
incurred by the Administrative Agent and its respective Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent and all fees, charges and
disbursements), in connection with the syndication of the credit facilities provided for herein,
the



Credit Agreement 58




 









 




preparation, negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and
(ii) all out of pocket expenses incurred by the Administrative Agent or any Lender (including the
fees, charges and disbursements of any counsel for the Administrative Agent or any Lender), and
shall pay all fees and time charges for attorneys who may be employees of the Administrative Agent
or any Lender, in connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Loan Documents, including its rights under this Section
11.2, or (B) in connection with the Loans made hereunder, including all such out of pocket
expenses incurred during any workout, restructuring or negotiations in respect of such Loans.




     (b) Indemnification. Each Loan Party agrees, jointly and severally, to indemnify the
Administrative Agent (and any sub-agent thereof) and each Lender, and each Related Party of any of
the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses
(including the fees, charges and disbursements of any counsel for any Indemnitee and of attorneys
who may be employees of any Indemnitee), incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by the Borrower or any other Loan Party (or any of their
respective Related Parties) arising out of, in connection with, or as a result of (i) the execution
or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective obligations hereunder
or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case
of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents, (ii) any Loan or the use or proposed
use of the proceeds thereof, (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by any Loan Party or any of its Subsidiaries, or any
Environmental Liability related in any way to any Loan Party or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by the Borrower or any other Loan Party (or any of their respective Related Parties), and
regardless of whether any Indemnitee is a party thereto, in all cases, whether or not caused by or
arising, in whole or in part, out of the comparative, contributory or sole negligence of the
Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (B) result from a claim brought by the
Borrower or any other Loan Party against an Indemnitee for a material breach of such Indemnitee’s
obligations hereunder or under any other Loan Document, if the Borrower or such other Loan Party
has obtained a final and nonappealable judgment in its favor on such claim as determined by a court
of competent jurisdiction.



     (c) Reimbursement by Lenders. To the extent that any Loan Party for any reason fails
to indefeasibly pay any amount required under clause (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of the
Administrative Agent, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent) or such Related Party, as the case may be, such Lender’s ratable share



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(determined as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) in its capacity as such, or against any Related Party
of the Administrative Agent acting for the Administrative Agent (or any such sub-agent) in
connection with such capacity. The obligations of the Lenders under this clause (c) are
subject to the provisions of Section 2.4.




     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
Applicable Law, no Loan Party shall assert, and each Loan Party hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No
Indemnitee referred to in clause (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.



     (e) Payments. All amounts due under this Section 11.2 shall be payable not
later than ten Business Days after demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the Commitments and the
repayment, satisfaction or discharge of all the other Obligations.



     SECTION 11.3 Amendments and Waivers, Etc. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any
other Loan Party therefrom, shall be effective unless in writing signed by the Majority Lenders and
the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the
Administrative Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided that no such amendment, waiver or
consent shall:



     (a) waive any condition set forth in Section 4.1(a) without the written consent of
each Lender;



     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.2) without the written consent of such Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment or
mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of
them) hereunder or under any other Loan Document without the written consent of each Lender
directly affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or (subject
to clause (ii) of the second proviso to this Section 11.3) any fees or other
amounts payable hereunder or under any Note, or change the manner of computation of any financial
ratio



Credit Agreement 60




 









 




(including any change in any applicable defined term) used in determining the Applicable
Margin that would result in a reduction of any interest rate on any Loan or any fee payable
hereunder without the written consent of each Lender directly affected thereby; provided that only
the consent of the Majority Lenders shall be necessary to amend the definition of “Default Rate” or
to waive any obligation of the Borrower to pay interest at the Default Rate;




     (e) change Section 2.13 in a manner that would alter the pro rata sharing of payments
required thereby without the written consent of each Lender;



     (f) change any provision of this Section, the definition of “Majority Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder
without the written consent of each Lender; or



     (g) release any Guarantor from its Guarantee hereunder without the written consent of each
Lender;


and provided further that (i) no amendment, waiver or consent shall, unless in writing and signed
by the Administrative Agent in addition to the Lenders required above, affect the rights or duties
of the Administrative Agent under this Agreement or any other Loan Document; and (ii) the Fee
Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by
the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall
have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent of such Lender.




     SECTION 11.4 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF
NEW YORK (NOT INCLUDING SUCH STATE’S CONFLICT OF LAWS PROVISIONS OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW).



     SECTION 11.5 Notices; Effectiveness; Electronic Communication. (a) Notices
Generally. Except in the case of notices and other communications expressly permitted to be
given by telephone (and except as provided in clause (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as follows, and all
notices and other communications expressly permitted hereunder to be given by telephone shall be
made to the applicable telephone number, as follows:




     (i) if to the Borrower, Arrendadora or the Administrative Agent, to the address,
telecopier number, electronic mail address or telephone number specified for such Person on
Schedule 11.5;




     (ii) if to a Guarantor that enters into an Accession Agreement, to the address,
telecopier number, electronic mail address or telephone number specified in such Accession
Agreement; and



Credit Agreement 61




 









 






     (iii) if to any Lender, to the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire.


Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in clause (b)
below, shall be effective as provided in such clause (b).




     (b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet
or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that
the foregoing shall not apply to notices to any Lender pursuant to Article II if such
Lender has notified the Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or any Loan Party may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement); provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE
ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS
IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE BORROWER MATERIALS OR
THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties have any
liability to any Loan Party, any Lender or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any
Loan Party’s or the Administrative Agent’s transmission of Borrower Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses are determined by a
court of competent jurisdiction by a final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of the Administrative Agent or any of its Related Parties;



Credit Agreement 62




 









 




provided that in no event shall the Administrative Agent or any Related Parties have any
liability to any Loan Party, any Lender or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).




     (d) Change of Address, Etc. Each of the Loan Parties and the Administrative Agent may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. Each Lender may change its address, telecopier or telephone
number for notices and other communications hereunder by notice to the Borrower and the
Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time
to time to ensure that the Administrative Agent has on record (i) an effective address, contact
name, telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.



     (e) Reliance by the Administrative Agent and Lenders. The Administrative Agent and
the Lenders shall be entitled to rely and act upon any notices purportedly given by or on behalf of
any Loan Party even if (i) such notices were not made in a manner specified herein, were incomplete
or were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. Each Loan Party
agrees, jointly and severally, to indemnify the Administrative Agent and each Lender and the
Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of any Loan Party. All
telephonic notices to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby consents to such
recording.



     SECTION 11.6 Table of Contents; Headings. The table of contents and captions and
section headings appearing herein are inserted for convenience only and shall not be deemed to
affect the meaning or construction of any of the provisions hereof.



     SECTION 11.7 Survival. All representations and warranties made hereunder and in any
other Loan Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the Administrative Agent and
each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on
their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or
knowledge of any Default at the time of any Loan, and shall continue in full force and effect as
long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any
Commitment shall remain outstanding. The obligations of the Borrower under Sections
3.1(b), 3.3, 3.4, and 11.2 and the obligations of the Lenders under
Section 11.2(c) shall survive the repayment of the Loans and the termination of the
Commitments and, in the case of any Lender that may assign any interest in its Commitment or Loan
hereunder, shall survive the making of such assignment with respect to the assigning Lender,
notwithstanding that such assigning Lender may cease to be a “Lender” hereunder; provided that any
Lender’s obligations under Section 11.2(c) shall only apply to the extent that the event
with respect to which any indemnification is payable thereunder occurred at the time that such
Lender maintained a Loan or Commitment hereunder.



Credit Agreement 63




 









 





     SECTION 11.8 Successors and Assigns. (a) Successors and Assigns Generally.
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that no Loan Party may
assign or otherwise transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer
all or any portion of its rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of clause (b), (ii) by way of participation in accordance
with the provisions of clause (d), or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of clause (f) (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent provided in
clause (d) and, to the extent expressly contemplated hereby, the Related Parties of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that:




     (i) except in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to
a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment, determined as of the
date the Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as
of the Trade Date, shall not be less than, (A) with respect to Tranche A Loans, US$5,000,000
and (B) with respect to Tranche B Loans, US$1,000,000, in each case unless the
Administrative Agent and, so long as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed);
provided that concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or to an
Eligible Assignee and members of its Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount has been met;




     (ii) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with respect to the
Loans or the Commitment assigned;




     (iii) any assignment of a Commitment or a Tranche A Loan must be approved by the
Administrative Agent (which approval shall not be unreasonably withheld or delayed) unless
the Person that is the proposed assignee is itself a Lender or an Affiliate of a Lender
(whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and



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     (iv) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee in the
amount of US$3,500 and the Eligible Assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause
(c), from and after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.1, 3.3, 3.4 and 11.2 with
respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this clause (b) shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in accordance with clause
(d).




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement and the other Loan Documents, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower at any reasonable time and from time
to time upon reasonable prior notice. In addition, at any time that a request for a consent for a
material or substantive change to the Loan Documents is pending, any Lender may request and receive
from the Administrative Agent a copy of the Register.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or any Loan Party or any Loan Party’s Affiliates or Subsidiaries) (each, a “Participant”) in
all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or
a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (iii) the Loan
Parties, the Administrative Agent and the Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement.


Any agreement or instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso




Credit Agreement 65




 









 







to Section 11.3 that affects such Participant. Subject to clause (e), the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 3.1, 3.3
and 3.4 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to clause (b). To the extent permitted by Applicable Law, each
Participant also shall be entitled to the benefits of Section 2.14(a) as though it were a
Lender if such Participant agrees to be subject to Section 2.14(b) as though it were a
Lender.




     (e) Limitation upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.1 or 3.3 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note(s), if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.



     (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



     SECTION 11.9 Interest Rate Limitation. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents
shall not exceed the maximum rate of non-usurious interest permitted by Applicable Law (the
“Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount
that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans
or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the
Maximum Rate, such Person may, to the extent permitted by Applicable Law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.



     SECTION 11.10 Submission to Jurisdiction; Venue; Service; Waiver of Jury Trial.



     (a) EACH OF THE PARTIES HERETO (AND ITS SUCCESSORS AND ASSIGNS) (i) AGREES THAT ANY CLAIM,
SUIT, ACTION OR PROCEEDING BROUGHT BY ANY PARTY OR SUCCESSOR THERETO ARISING OUT OF OR WITH RESPECT
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE SUBJECT TO THE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK (IN
EACH



Credit Agreement 66




 









 




CASE LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY), TO THE JURISDICTION OF ANY
COMPETENT COURT IN THE PLACE OF ITS CORPORATE DOMICILE IN RESPECT OF ACTIONS BROUGHT AGAINST IT AS
A DEFENDANT AND TO APPELLATE COURTS THEREFROM AND EACH OF THE PARTIES HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO SUCH JURISDICTION FOR SUCH PURPOSE AND (ii) TO
THE FULLEST EXTENT PERMITTED BY LAW, (A) IRREVOCABLY WAIVES ANY OBJECTION IT MAY HAVE AT ANY TIME
TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT BROUGHT IN ANY SUCH COURT, (B) IRREVOCABLY WAIVES ANY CLAIM
THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM, (C) IRREVOCABLY WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO SUCH CLAIM, SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER IT
AND (D) IRREVOCABLY WAIVES ANY RIGHT TO WHICH IT MAY BE ENTITLED ON ACCOUNT OF PLACE OF RESIDENCE
OR DOMICILE. EACH OF THE PARTIES HERETO HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ALL RIGHTS OF
JURISDICTION IN ANY SUCH ACTION OR PROCEEDING, WHICH IT MAY NOW OR HEREAFTER BE AFFORDED BY LAW, IN
ANY OTHER FORUM. EACH OF THE PARTIES HERETO FURTHER AGREES THAT A FINAL JUDGMENT IN ANY SUCH SUIT,
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY MANNER PROVIDED BY LAW.




     (b) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     (c) FOR THE PURPOSE OF PROCEEDINGS IN THE COURTS OF THE STATE OF NEW YORK AND THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE LOCATED IN THE BOROUGH OF
MANHATTAN IN NEW YORK CITY), EACH LOAN PARTY HEREBY IRREVOCABLY DESIGNATES AS OF THE EFFECTIVE DATE
CT CORPORATION SYSTEM (“PROCESS AGENT”) WITH OFFICES CURRENTLY LOCATED AT 111 EIGHTH AVENUE, NEW
YORK, NEW YORK 10011 AS ITS AGENT FOR SERVICE OF PROCESS. IN THE EVENT THAT SUCH AGENT OR ANY
SUCCESSOR SHALL CEASE TO BE LOCATED IN THE BOROUGH OF MANHATTAN, EACH LOAN PARTY SHALL PROMPTLY AND
IRREVOCABLY BEFORE THE RELOCATION OF SUCH AGENT FOR SERVICE OF



Credit Agreement 67




 









 




PROCESS, IF PRACTICABLE, OR PROMPTLY THEREAFTER DESIGNATE A SUCCESSOR AGENT, WHICH SUCCESSOR
AGENT SHALL BE LOCATED IN THE BOROUGH OF MANHATTAN, AND NOTIFY THE ADMINISTRATIVE AGENT THEREOF, TO
ACCEPT ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS OR OTHER DOCUMENTS WHICH MAY BE SERVED IN ANY
ACTION OR PROCEEDING IN ANY OF SUCH COURTS AND FURTHER AGREES THAT SERVICE UPON SUCH AGENT SHALL
CONSTITUTE VALID AND EFFECTIVE SERVICE UPON EACH SUCH LOAN PARTY AND THAT FAILURE OF ANY SUCH AGENT
TO GIVE ANY NOTICE OF SUCH SERVICE TO SUCH LOAN PARTY SHALL NOT AFFECT THE VALIDITY OF SUCH SERVICE
OR ANY JUDGMENT RENDERED IN ANY ACTION OR PROCEEDING BASED THEREON. EACH OF THE PARTIES HERETO
AGREES THAT SERVICE OF ANY AND ALL SUCH PROCESS OR OTHER DOCUMENTS ON SUCH PERSON MAY ALSO BE
EFFECTED BY REGISTERED MAIL TO ITS ADDRESS AS SET FORTH IN SECTION 11.5 OR SCHEDULE
11.5. WITH RESPECT TO EACH LOAN PARTY, SERVICE OF ANY AND ALL SUCH PROCESS OR OTHER DOCUMENTS
TO THE PROCESS AGENT OR SUCH OTHER AGENT FOR SERVICE OF PROCESS DESIGNATED BY SUCH LOAN PARTY IN
ACCORDANCE WITH THIS AGREEMENT SHALL CONSTITUTE VALID AND EFFECTIVE SERVICE ONLY IF MADE IN PERSON
TO THE PROCESS AGENT OR SUCH OTHER AGENT FOR SERVICE OF PROCESS.




     SECTION 11.11 Judgment Currency. All payments made under this Agreement and the Notes
shall be made in Dollars (to the extent required by the terms hereof, the applicable “Agreement
Currency”), as applicable, and, if for any reason any payment made hereunder or under any Note is
made in a currency (the “Other Currency”) other than the applicable Agreement Currency, then to the
extent that the payment actually received by the relevant Beneficiary, when converted into the
applicable Agreement Currency at the Rate of Exchange (as defined below) on the date of payment
(or, if conversion on such date is not practicable, as soon thereafter as it is practicable for
such Beneficiary to purchase the applicable Agreement Currency) falls short of the amount due under
the terms of this Agreement or any Note, the Loan Parties shall, as a separate and independent
obligation of the Loan Parties, indemnify such Beneficiary and hold such Beneficiary harmless
against the amount of such shortfall. As used in this Section 11.11, the term “Rate of
Exchange” means the rate at which the Beneficiary is able on the relevant date to purchase the
applicable Agreement Currency with the Other Currency and shall include any premiums and costs of
exchange payable in connection with the purchase of or conversion into, the applicable Agreement
Currency.



     SECTION 11.12 Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.



     SECTION 11.13 Waiver of Immunities. To the extent that any Loan Party has or
hereafter may acquire any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its Property, such Loan Party hereby irrevocably
waives such immunity in respect of its obligations under this Agreement and the other Loan
Documents. The foregoing waiver is intended to be effective to the fullest extent now or hereafter
permitted by Applicable Law.



Credit Agreement 68




 









 





     SECTION 11.14 Severability. To the fullest extent permitted by law, any provision of
this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction, and the remaining portion of such provision and all other
remaining provisions hereof will be construed to render them enforceable.



     SECTION 11.15 Treatment of Certain Information; Confidentiality. The Administrative
Agent and each of the Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and be required to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by Applicable Laws or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement with each Person receiving the Information containing provisions
substantially the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the
extent such Information (i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent, any Lender, or any of their
respective Affiliates on a nonconfidential basis from a source other than the Borrower.



     For purposes of this Section, “Information” means all information received from any Loan Party
or any Subsidiary relating to any Loan Party or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by such Loan Party or Subsidiary; provided
that, in the case of information received from a Loan Party or any Subsidiary after the date
hereof, such information is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.



     The Administrative Agent and each of the Lenders acknowledges that (a) the Information may
include material non-public information concerning a Loan Party or a Subsidiary, as the case may
be, (b) it has developed compliance procedures regarding the use of material non-public information
and (c) it will handle such material non-public information in accordance with Applicable Law,
including Federal and state securities laws.



     SECTION 11.16 No Waiver; Remedies. No failure on the part of the Administrative Agent
or any of the Lenders to exercise, and no delay in exercising, any right hereunder shall



Credit Agreement 69




 









 




operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by law.




     SECTION 11.17 Entire Agreement. As of the Effective Date, this Agreement and the
other Loan Documents (including the Fee Letters with respect to the matters covered thereby)
constitute the entire agreement among the parties with respect to the subject matter hereof and
thereof and supersede all prior or contemporaneous agreements and understandings of such Persons,
verbal or written, relating to the subject matter hereof and thereof.



     SECTION 11.18 USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




Credit Agreement 70




 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly
authorized representatives as of the date first above written.



	 	 	 	 	 	 	 
	 	 	KANSAS CITY SOUTHERN DE
MÉXICO, S.A. DE C.V., as the
Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	    /s/ Paul J. Weyandt
 

Name: Paul J. Weyandt
	 	 
	 

	 	 	 	Title: Treasurer & Attorney-in-Fact	 	 
	 
	 	 	 	 	 	 
	 	 	ARRENDADORA KCSM, S.A. DE C.V.,	 	 
	 	 	   as the Guarantor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	   /s/ Paul J. Weyandt	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Paul J. Weyandt	 	 
	 

	 	 	 	Title: Treasurer & Attorney-in-Fact	 	 






Credit Agreement Exhibit S - 1




 









 





	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,	 	 
	 	 	   as the Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	   /s/ Robert Rittelmeyer
 

Name: Robert Rittelmeyer
	 	 
	 

	 	 	 	Title: Vice President	 	 






Credit Agreement Exhibit S - 2




 









 





	 	 	 	 	 	 	 
	 	 	LENDERS:	 	 
	 
	 	 	 	 	 	 
	 	 	BBVA BANCOMER, S.A., INSTITUCIÓN DE
BANCA MÚLTIPLE, GRUPO FINANCIERO BBVA BANCOMER, GRAND CAYMAN BRANCH
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	   /s/ Leonardo Sanchez Espejel
 

Name: Leonardo Sanchez Espejel
	 	 
	 

	 	 	 	Title: Director – Banca Corporativa	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	   /s/ Juan Alberto Vazquez Chaholla	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Juan Alberto Vazquez Chaholla	 	 
	 

	 	 	 	Title: Director – Banca Corporativa	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: Grand Cayman, Cayman Islands	 	 






Credit Agreement Exhibit S - 3




 









 








	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	   /s/ Gerardo Obregon
 

Name: Gerardo Obregon
Title: Attorney-in-Fact
	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: Concord, California, United States of
America	 	 






Credit Agreement Exhibit S - 4




 









 





	 	 	 	 	 	 	 
	 	 	EXPORT DEVELOPMENT CANADA	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	   /s/ Karen Morandin
 

Name: Karen Morandin
	 	 
	 

	 	 	 	Title: Financing Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	    /s/ Marc Blondin	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Marc Blondin	 	 
	 

	 	 	 	Title: Financing Manager	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: Ottawa, Ontario, Canada	 	 






Credit Agreement Exhibit S - 5




 









 





	 	 	 	 	 	 	 
	 	 	KFW	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	    /s/ Martin Kloster
 

Name: Martin Kloster
	 	 
	 

	 	 	 	Title: First Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	    /s/ Irmela Ginkel	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Irmela Ginkel	 	 
	 

	 	 	 	Title: Senior Project Manager	 	 






Credit Agreement Exhibit S - 6




 









 





	 	 	 	 	 	 	 
	 	 	BANK OF MONTREAL	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	   /s/ William Thomson
 

Name: William Thomson
	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	   	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: Chicago, Illinois, United States of
America	 	 






Credit Agreement Exhibit S - 7




 









 





	 	 	 	 	 	 	 
	 	 	THE BANK OF NOVA SCOTIA	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	   /s/ R.V. Finlay
 

Name: R.V. Finlay
	 	 
	 

	 	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	   	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






Credit Agreement Exhibit S - 8




 









 





	 	 	 	 	 	 	 
	 	 	COMERICA BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	   Mark F. Layton
 

Name: Mark F. Layton
	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	   	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Lending Office: Detroit, Michigan, United States of
America	 	 






Credit Agreement Exhibit S - 9