Exhibit 10.2
INDEMNITY ESCROW NOTE
US $20,745,800
December 15, 2004
WHEREAS, Kansas City Southern, a Delaware corporation ("Obligor"),
pursuant to Section 1.2(a) of the Amended and Restated Acquisition Agreement
among Obligor, MM (defined below), and the other parties named therein dated
December 15, 2004 (the "Acquisition Agreement"), promises to deliver for the
benefit of TMM Multimodal, S.A. de C.V., a SOCIEDAD ANONIMA DE CAPITAL VARIABLE
organized under the laws of the United Mexican States ("MM"), the unsecured
promissory debt obligation of Obligor in the principal amount of Twenty Million
Seven Hundred Forty Five Thousand Eight Hundred U.S. Dollars (US $20,745,800)
(this "Note");
WHEREAS, ▇▇▇▇▇▇▇ and MM each desire to evidence such debt obligation
with the issuance of this Note upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the recitals (which are deemed to
be a part of this Note) and agreements contained herein, the parties hereto
agree as follows:
I. PROMISE TO PAY. For value received and subject to reduction pursuant to
Section II below, Obligor hereby promises to pay to the order of MM in
immediately available funds on June 1, 2007, the principal sum of Twenty Million
Seven Hundred Forty Five Thousand Eight Hundred U.S. Dollars (US $20,745,800),
together with interest on any and all unpaid principal amounts from but not
including the Closing Date to June 1, 2007, as determined in accordance with the
terms below. Payment shall be made to such account as shall be designated by MM
by at least ten days written notice to Obligor. Obligor may, at its sole option,
convert all or any part of the principal amount of this Note and any interest
accrued thereon to that number of shares of KCS Common Stock ("Shares") as,
valued at the average trading price per Share on the New York Stock Exchange, as
reported on Bloomberg (VAP function) for the twenty (20) consecutive trading
days immediately preceding April 1, 2007, equal to the amount so converted, by
delivery on or before April 1, 2007 of irrevocable written instructions to such
effect to the Escrow Agent, simultaneously copied to TMM, and accompanied by one
or more certificates representing such Shares.
II. REDUCTION OF PRINCIPAL AMOUNT. All amounts due under this Note shall be
subject to reduction in accordance with the terms and conditions of the
Indemnity Escrow Agreement dated as of the date hereof by and among Obligor,
Grupo TMM, S.A., and the Escrow Agent named therein.
III. INTEREST RATE/PAYMENT. Commencing on the Closing Date, the outstanding
principal amount of this Note shall bear interest at a rate per annum equal to
five percent (5%). Interest shall be payable upon payment of any principal
amounts hereunder.
IV. PREPAYMENT. Obligor shall have the right to prepay the indebtedness
evidenced by this Note, including principal and any accrued interest thereon, in
cash or KCS Common
Stock, in whole or in part, without premium or penalty, upon not less than
thirty (30) days notice to the holder thereof.
V. ASSIGNMENT. MM's rights under this Note may not be negotiated or
assigned.
VI. OBLIGATIONS OF OTHERS. Obligor's obligations under this Note will also
be binding on ▇▇▇▇▇▇▇'s successors and assigns and shall only be assigned,
transferred or otherwise conveyed to a person or entity that consents in writing
to be so bound. No such assignment, transfer or conveyance shall release Obligor
of its obligations hereunder.
VII. WAIVER; GOVERNING LAW. Obligor hereby waives notice presentment for
payment, demand, notice of dishonor and protest of this Note, and further agrees
that this Note shall be deemed to have been made under and shall be governed by
the laws of the State of Delaware without giving effect to the choice of law
principles of that state, in all respects, including matters of construction,
validity and performance, and that none of its terms or provisions may be
waived, altered, modified or amended except as may be consented to in a duly
signed writing by MM.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ has executed and delivered this Note as of the
date first above written.
Kansas City Southern
By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and General
Counsel
SCHEDULE A
[REDUCTIONS TO PRINCIPAL AMOUNT]