EX-10.1






PURCHASE AND SALE AGREEMENT




This Purchase and Sale Agreement, dated as of October 17, 2005, is by and between El-Mo-Mex, Inc.,
a Delaware corporation (“Seller”), and The Kansas City Southern Railway Company, a Missouri
corporation (“Buyer”). Seller and Buyer are referred to together as the “Parties”.



Seller and Buyer agree as follows:



1. Purchase and Sale.



Seller will sell, and Buyer will buy, the 75 SD70MAC Locomotives listed on Schedule I (the
“Locomotives”) on the terms and subject to the conditions set forth in this Agreement. Buyer may,
by three days advance written notice to Seller, assign to NAFTA Rail, S.A. de C.V. (“NAFTA Rail”)
Buyer’s rights to purchase the Locomotives that are located in Mexico on the Closing Date.



2. Purchase Price.



The purchase price for the Locomotives is (i) $32,625,000 (“Cash Purchase Price”), payable by wire
transfer at Closing, and (ii) the assumption of the principal and accrued and unpaid interest as of
the Closing Date of the indebtedness (the “Indebtedness”) secured by the Locomotives and held by
Export Development Canada and Kreditanstalt Fur Wiederaufbau (together the “Lenders”), but after
giving effect to the payment on the Indebtedness to be made by Seller as provided in Section 10(c)
of this Agreement.



3. Assignment and Assumption of TFM Lease.



In connection with the purchase and sale of the Locomotives, (i) Seller will assign to Buyer all of
Seller’s rights under the Sublease of Locomotives dated as of September 8, 1999 (the “TFM Lease”)
between General Motors de Mexico, S. de R.L. de C.V., as Lessor (under which Seller will be Lessor
as of Closing) and TFM, S.A. de C.V. (“TFM”), as Lessee, and (ii) Buyer will assume all of Seller’s
obligations under the TFM Lease arising on and after the Closing. In order to effect such
assignment and assumption, at Closing Seller and Buyer will execute and deliver an Assignment and
Assumption of TFM Lease in the form of Exhibit A to this Agreement.



4. Disposition of Funds Held Under Trust Agreement.



Funds held as of the Closing Date by BANCO NACIONAL DE MEXICO, S.A., División Fiduciaria,
Institución de Banca Múltiple, Integrante del Grupo Financiero Banamex (formerly CITIBANKMÉXICO,
S.A., Grupo Financiero Citibank, Division Fiduciaria) as Trustee (the “Trustee”) under the
Irrevocable Guaranty and Trust Administration Agreement dated as of September 14, 1999, as amended
by the First Amendment of Trust Agreement dated as of March 14, 2003 (as so amended, the “Trust
Agreement”), shall be distributed as follows:




To Buyer: an amount equal to the prepaid and unaccrued rent under the TFM Lease.




To Controladora General Motors, S.A. de C.V.: the balance



As a condition to Closing, the Trust Agreement will be terminated by the parties thereto, and
Buyer and Seller will direct the Trustee to distribute the funds held pursuant thereto as provided
above.



5. Assignment of Rights under Purchase Agreement.



Effective as of Closing, Seller assigns to Buyer all of Seller’s rights under the Purchase
Agreement for the Locomotives dated September 3, 1999 (the “Locomotive Purchase Agreement”) between
Electro-Motive Division of General Motors Corporation and (by assignment) Seller. Buyer
acknowledges that certain rights under the Locomotive Purchase Agreement have been assigned to
Lenders pursuant to a Warranties Assignment Agreement dated September 8, 1999.



6. Closing.



The Closing of the purchase and sale contemplated by this Agreement shall take place on October 21,
2005 (or such other date on or prior to October 31, 2005 to which the parties agree) (“Closing
Date”) at the office of McLachlan, Rissman & Doll, Chicago, Illinois, through exchange of documents
by courier and facsimile transmission and payment of the Cash Purchase Price by wire transfer.



7. Seller’s Closing Deliveries.



At the Closing, Seller will deliver:




a. Bills of Sale in the form of Exhibit B-1 and Exhibit B-2, duly executed by Seller;




b. A Guaranty in the form of Exhibit C (the “Guaranty”), duly executed by General Motors
Corporation (“General Motors”);




c. The Assignment and Assumption of TFM Lease in the form of Exhibit D, duly executed by
Seller;




d. The Seller’s counterpart original of the TFM Lease and originals of all documents
evidencing Seller’s ownership and title to the Locomotives;




e. A duly executed instrument, in recordable form, with respect to any STB, UCC,
Canadian or other filing made by Seller or any of its predecessors in interest against the
Locomotives or the TFM Lease, evidencing the termination of such filing or an assignment of
such filing to Buyer, such instruments to be provided to Seller by Buyer at least five days
in advance of Closing; and.




f. Incumbency Certificates with respect to the officership of the persons executing this
Agreement and the instruments described above on behalf of Seller and General Motors.



8. Buyer’s Closing Deliveries.



At the Closing Buyer will deliver:




a. A wire transfer of the Cash Purchase Price to an account specified by Seller in writing
in advance of the Closing;




b. The Assignment and Assumption of TFM Lease (the “Assignment and Assumption Agreement”)
in the form of Exhibit C, duly executed by Buyer; and




c. An Assignment and Assumption of Loan Agreement with attached Release by Lenders of
Assignor duly executed by Lenders in the form of Exhibit E hereto.



9. Disclaimers.



The Locomotives and the TFM Lease are sold hereunder AS IS, WHERE IS, without representation or
warranty, except for the representations expressly made in this Agreement, the Bill of Sale, the
Guaranty or the Assignment and Assumption Agreement. Each party has made its own investigation of
the tax consequences of the transactions contemplated by this Agreement and has not relied on any
representation or assurance of any other party as to such tax matters.



10. Closing Conditions.



Closing of the transactions contemplated by this Agreement is subject to satisfaction of the
following conditions:



a. Execution by the Lenders of the Assignment and Assumption of Loan Agreement and the
attached Lenders Release of Assignor in the form of Exhibit D;



b. Execution by the parties thereto of the Termination of the Trust Agreement pursuant to a
Termination of Trust Agreement in the form of Exhibit E hereto;



c. Payment by Seller to Lenders of an amount equal to the sum of (i) accrued and unpaid
interest on the Indebtedness and (ii) amortization of the principal of the Indebtedness from the
date of the last payment date on the Indebtedness and the Closing Date; and



d. Delivery of the documents described in Sections 7 and 8 hereof.



11. Representations and Warranties of Seller.



Seller represents and warrants as follows:



(a) Organization. Seller is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation.



(b) Authorization of Transaction. Seller has full power and authority (including full
corporate power and authority) to execute and deliver this Agreement and the Exhibits hereto to
which Seller is a party and to perform its obligations hereunder and thereunder. The execution,
delivery, and performance of this Agreement and the Exhibits hereto to which Seller is a party and
the execution and delivery of the Guaranty by General Motors have been duly authorized by all
necessary corporate action on the part of Seller and General Motors. This Agreement constitutes,
and the Exhibits to which Seller is a party when executed and delivered by Seller will constitute,
the valid and legally binding obligation of Seller, enforceable against Seller in accordance with
their respective terms and conditions.



(c) Noncontravention. Neither the execution and the delivery of this Agreement or the
Exhibits hereto, nor the consummation of the transactions contemplated hereby or thereby will (i)
violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling or
other restriction of any government, governmental agency, or court to which Seller is subject or
any provision of the charter or bylaws of Seller or (ii) conflict with any agreement to which
Seller is a party.



(d) Brokers’ Fees. Except for any commission due Railroad Financial Corporation, which
Seller agrees to pay and to indemnify Buyer against, Seller has not incurred any liability or
obligation for fees or commissions to any broker, finder or agent with respect to the transactions
contemplated by this Agreement.



(e) Title to Locomotives. At the Closing, Seller will have good title to the Locomotives,
free and clear of any encumbrance arising through Seller or its predecessor owners of the
Locomotives, other than (i) the TFM Lease and (ii) the security interests in favor of the Lenders
to secure the Indebtedness. At the Closing, Seller will be the sole legal and beneficial owner of
the Locomotives.



(f) Title to TFM Lease. As of the Closing Date, Seller will have all rights of Lessor
under the TFM Lease (including the rights to receive rents, indemnities or other amounts or
obligations payable or to be performed by TFM thereunder), other than the rights granted to Lenders
to secure the Indebtedness. Except for rights granted to the Lenders to secure the Indebtedness,
Seller has made no prior conveyance of the TFM Lease or its rights thereunder.



(g) No Presence in Mexico. Seller does not have an office or other legal presence in
Mexico.



12. Representations and Warranties of Buyer.



Buyer represents and warrants as follows:



(a) Organization of Buyer. Buyer is a corporation duly organized, validly existing, and in
good standing under the laws of the jurisdiction of its incorporation.



(b) Authorization of Transaction. Buyer has full power and authority (including full
corporate power and authority) to execute and deliver this Agreement and the Exhibits to which
Buyer is a party and to perform its obligations hereunder and thereunder. The execution, delivery,
and performance of this Agreement by Buyer has been duly authorized by all necessary corporate
action on the part of Buyer. This Agreement constitutes, and the Exhibits to which Buyer is a
party when executed and delivered by Buyer will constitute, the valid and legally binding
obligation of Buyer, enforceable in accordance with its terms and conditions.



(c) Noncontravention. Neither the execution and the delivery of this Agreement or the
Exhibits hereto to which Buyer is a party, nor the consummation of the transactions contemplated
hereby or thereby will (i) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling or other restriction of any government, governmental agency, or
court to which Buyer is subject or any provision of the charter or bylaws of Buyer or (ii) conflict
with any agreement to which Buyer is a party.



(d) Brokers’ Fees. Except for any commission due AMA Capital Partners, which Buyer agrees
to pay and to indemnify Seller against, Buyer has not incurred any liability or obligation for fees
or commissions to any broker, finder or agent with respect to the transactions contemplated by this
Agreement.



13. Taxes.



Any taxes arising from the transactions contemplated by this Agreement in the nature of transfer
taxes, sales taxes, value added taxes, goods and services taxes or similar taxes (a “Sales Tax”)
shall be paid or reimbursed by Buyer. Buyer represents to Seller that on the Closing, each of the
Locomotives will be physically present in Mexico or in one of the U.S. States identified on
Schedule II hereto. Upon Seller’s receipt of any proposed or actual assessment of a Sales Tax,
Seller shall provide timely notice to Buyer and, in such event, Buyer (i) shall have the right to
contest any such assessment or proposed assessment of any Sales Tax reportable on a tax return of
Seller by appropriate judicial or administrative proceedings, or both, and Seller agrees to take
any action reasonably requested by Buyer in connection with any such contest; and (ii) shall have
the right to require Seller to contest any such assessment or proposed assessment of any Sales Tax
reportable on a tax return of Seller by appropriate judicial or administrative proceedings, or both
(Buyer being allowed a reasonable opportunity to consult with and participate in such contest).
Buyer agrees to indemnify, reimburse and hold Seller harmless from any costs or expenses in
connection with any such contest, including reasonable attorneys’ fees and expenses. If, after any
such contest, Seller shall nevertheless be required to pay any Sales Tax that it is being
indemnified for by Buyer, Buyer, upon written notice from Seller, shall pay to the appropriate
taxing authorities the full amount thereof, including interest and penalties thereon, if any.
Nothing herein shall require any party to provide the other with any of its federal, state or local
income tax returns. Notwithstanding the foregoing, in reliance on the representation of Seller
contained in the second sentence of this Section 11, Seller agrees that it will not report the sale
of the Locomotives as taxable on the schedule of transactions that it submits to any taxing
authority for purposes of assessment of Sales Tax.



14. Miscellaneous.



(a) Press Releases and Public Announcements. No Party shall issue any press release or make
any public announcement relating to the subject matter of this Agreement without the prior written
approval of the other Party, which approval will not be unreasonably withheld or delayed; provided,
however, that any Party may make any public disclosure it believes in good faith is required by
applicable law or the rules and regulations of any securities exchange on which any securities of
such Party (or its parent corporation) are traded (in which case the disclosing Party will use its
reasonable best efforts to advise the other Party prior to making the disclosure).



(b) No Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies
upon any Person other than the Parties and their respective successors and permitted assigns.



(c) Entire Agreement. This Agreement (including the documents referred to herein)
constitutes the entire agreement between the Parties and supersedes any prior understandings,
agreements, or representations by or between the Parties, written or oral, to the extent they
relate in any way to the subject matter hereof.



(d) Succession and Assignment. This Agreement shall be binding upon and inure to the
benefit of the Parties named herein and their respective successors and assigns.



(e) Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but all of which together will constitute one and the same instrument.



(f) Headings. The section headings contained in this Agreement are inserted for convenience
only and shall not affect in any way the meaning or interpretation of this Agreement.



(g) Notices. All notices, requests, demands, claims, and other communications hereunder
must be in writing and shall be deemed duly given when received by the addressee (as evidenced by
tracking reports of such overnight courier, if sent by overnight courier), charges prepaid, and
addressed to the intended recipient as set forth below:



If to Buyer:



The Kansas City Southern Railway Company



Attn: Senior Vice President & General Counsel



PO Box 219335



Kansas City MO 64121-9335



Address of Buyer for Courier and Similar Delivery:



The Kansas City Southern Railway Company



Attn: Senior Vice President & General Counsel



427 West 12th Street



Kansas City MO 64105



Copy to:



The Kansas City Southern Railway Company



Attn: Executive Vice President & CFO



PO Box 219335



Kansas City MO 64121-9335



If to Seller:



El-Mo Mex, Inc.



c/o General Motors Corporation



Treasurer’s Office



767 Fifth Avenue



New York, NY 10153



Attention: Kevan Parekh



Copies to:



Raymond A. Krause




Executive Director


North American Privacy


General Motors Corporation, M/C: 482-C25-A36




300 Renaissance Center, Detroit, MI 48265-3000



and



John H. Doll



McLachlan, Rissman & Doll



676 North Michigan Ave., Ste 2800



Chicago, IL 60611



Any Party may send any notice, request, demand, claim, or other communication hereunder to the
intended recipient at the address set forth above using any other means (including personal
delivery, messenger service, telecopy, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly given unless and
until it actually is received by the intended recipient. Any Party may change the address to which
notices, requests, demands, claims, and other communications hereunder are to be delivered by
giving the other Party notice in the manner herein set forth.



(h) Governing Law; Jurisdiction. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Illinois without giving effect to any choice or
conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State of Illinois. Each
Party submits to the jurisdiction of, and waives any venue objection against, the United States
District Court for the Northern District of Illinois (or any court of the State of Illinois located
in such district) in any litigation arising out of this Agreement.



(i) Amendments and Waivers. No amendment of any provision of this Agreement shall be valid
unless the same shall be in writing and signed by both Parties. No waiver by any Party of any
default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or
not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.



(j) Severability. Any term or provision of this Agreement that is invalid or unenforceable
in any situation in any jurisdiction shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction.



(k) Expenses. Each of the Parties will bear its own costs and expenses (including legal
fees and expenses) incurred in connection with this Agreement and the transactions contemplated
whether or not Closing occurs.



(l) Construction. The Parties have participated jointly in the negotiation and drafting of
this Agreement. In the event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of
proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law
shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the
context requires otherwise. The word “including” shall mean including without limitation.



[signature page follows]





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[signature page to Purchase and Sale Agreement]




IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above
written.



	 	 	 
	El-Mo-Mex, Inc.	 	The Kansas City Southern
	 	 	Railway Company
	By: /s/ Raymond A. Krause

	 	By: /s/ Ronald G. Russ
	 

	 	 
	Title: President

	 	Title: Executive Vice President &

Chief Financial Officer
	 
	 	 







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