Contract
EXHIBIT 10.3
Execution Version
For Information Purposes
ASSIGNMENT AND AMENDMENT AGREEMENT dated September 30, 2011 (this “Assignment and Amendment Agreement”) entered into by and among Kansas City Southern de México, S.A. de C.V. (“KCSM”), Arrendadora KCSM, S. de X.X. de C.V. (“Arrendadora”), Highstar Harbor Holdings México, S. de X.X. de C.V. (“HHH”), MTC Puerta Mexico, S. de X.X. de C.V. (“MTC”), and Vamos a México, S.A. de C.V. (“VAM” and together with KCSM, Arrendadora, HHH and MTC, the “Pledgors” and each a “Pledgor”), Scotiabank Inverlat, S.A., Institución de Banca Múltiple, Grupo Financiero Scotiabank Inverlat, in its capacity as Original Collateral Agent, acting on its own behalf and on behalf and for the benefit of the Secured Parties as original pledgee (hereinafter, the “Substituted Pledgee”), JPMorgan Chase Bank, N.A., as New Collateral Agent, acting on its own behalf and on behalf and for the benefit of the Secured Parties as new pledgee (hereinafter, together with its successors or assigns, the “Substitute Pledgee”, and together with the Pledgors and the Substituted Pledgee, the “Parties”) (capitalized terms used and not defined herein shall have the meanings ascribed to them in the Asset Pledge Agreement (as defined below)).
RECITALS
(a) WHEREAS, on August 30, 2010, KCSM, as borrower, entered into a Credit Agreement for the maximum principal amount of US$100,000,000.00 (one hundred million dollars 00/100, currency of the United States of America) (the “Existing Credit Agreement”), with various financial institutions and other persons from time to time parties thereto or that subsequently became parties thereto (including their successors and assigns) as lenders, The Bank of Nova Scotia, as administrative agent, the Substituted Pledgee, as Collateral Agent, and The Bank of Nova Scotia and Banc of America Securities LLC, as joint lead arrangers and joint bookrunners.
(b) WHEREAS, on August 30, 2010, the Substituted Pledgee and the Pledgors entered into a Pledge without Transfer of Possession Agreement (Contrato de Prenda sin Transmisión de Posesión (the “Original Asset Pledge Agreement”), under which the Pledgors granted a first priority lien in favor of the Substituted Pledgee in respect of the Pledged Assets, to secure the due and punctual performance of the Obligations. A copy of the Asset Pledge Agreement (without exhibits) is attached hereto as Exhibit “A”.
(c) WHEREAS, on February 15, 2011, the Substituted Pledgee and the Pledgors entered into an amendment agreement of the Original Asset Pledge Agreement, to the effect of substituting Exhibit E of the Original Asset Pledge Agreement, (the “First Amendment to the Asset Pledge Agreement” and together with the Original Asset Pledge Agreement, the “Asset Pledge Agreement”). A copy of the First Amendment to the Asset Pledge Agreement (with exhibits) is attached hereto as Exhibit “B”.
(d) WHEREAS, on the date hereof, KCSM, as borrower, entered into an Amended and Restated Credit Agreement to amend and restate the Existing Credit Agreement in its entirety, including but not limited to, increase the maximum principal amount to US$200,000,000.00 (two hundred million dollars 00/100, currency of the United States of America) (the “Credit Agreement”), with various financial institutions and other persons from time to time parties thereto (including their successors and assigns) as lenders, JPMorgan Chase Bank, N.A., as administrative agent and as collateral agent, JPMorgan Securities, LLC and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated, as joint lead arrangers and joint bookrunners, JPMorgan Securities LLC as Syndication Agent, BBVA Bancomer, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA Bancomer as joint bookrunner and co-documentation agent and Bank of America N.A. as co-documentation agent. A copy of the Credit Agreement (without exhibits) is attached hereto as Exhibit “C”.
(e) WHEREAS, the Parties hereto are entering into this Assignment and Amendment Agreement in order for the Substituted Pledgee to assign its rights and obligations under the Asset Pledge Agreement in favor of the Substitute Pledgee and to amend certain terms and conditions of the Asset Pledge Agreement, resulting from the execution of the Credit Agreement.
REPRESENTATIONS
| I. | Each of the Pledgors hereby represents and warrants that: |
(a) Arrendadora, HHH and MTC are each a limited liability company with variable capital (sociedad de responsabilidad limitada de capital variable), and KCSM and VAM are each a corporation with variable capital (sociedad anónima de capital variable), duly organized and validly existing under the laws of the United Mexican States (“Mexico”) and is in compliance of its corporate and any other obligations under the laws of the jurisdiction of its organization.
(b) It has the corporate power and authority to enter into this Assignment and Amendment Agreement and has obtained all required corporate authorizations and approvals to perform its obligations in the terms provided hereunder.
(c) Its attorney-in-fact is duly authorized to enter into this Assignment and Amendment Agreement, which authority has not been revoked or modified in any manner whatsoever.
(d) The execution and performance of this Assignment and Amendment Agreement and the granting of the pledge under the Asset Pledge Agreement do not violate its by-laws or any other documents or any law, regulation, judgment or order applicable to it or any contract, agreement, deed or other instrument to which it is a party or to which its rights and properties are subject or result in the creation or imposition of any lien, claim or rights of third parties upon or with respect to any such properties, other than the pledge under the Asset Pledge Agreement.
2
(e) It is the legal and beneficial owner, free of any lien, encumbrances or ownership limitations (except for the pledge and security interest created under the Asset Pledge Agreement) of the Pledged Assets.
(f) It is willing to enter into this Assignment and Amendment Agreement in order to acknowledge the assignment of the Substituted Pledgee’s rights and obligations to the Substitute Pledgee and to maintain a first priority pledge in the Pledged Assets, in favor of the Substitute Pledgee, in its capacity as Collateral Agent, acting on behalf and for the benefit of the Secured Parties and to secure the Obligations.
(g) Other than as described herein, the execution of this Assignment and Amendment Agreement does not affect the first priority security interest in the Pledged Assets granted under the Asset Pledge Agreement to secure the due and prompt satisfaction of any and all of the Obligations and all the necessary actions to perfect and protect such security interest have been taken.
(h) Except as expressly stated herein, no consent of any other person and no authorization, permit, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required (i) for the Pledgors to execute this Assignment and Amendment Agreement and to maintain the pledge by the Pledgors of the Pledged Assets pursuant to the Asset Pledge Agreement or for the execution or performance of this Assignment and Amendment Agreement by the Pledgors, (ii) for the perfection or maintenance of the pledge on the Pledged Assets created under the Asset Pledge Agreement (including the first priority nature of such pledge) or (iii) to exercise the remedies in respect of the Pledged Assets pursuant to the Asset Pledge Agreement.
(i) By executing this Assignment and Amendment Agreement, it expressly recognizes the existence of the Secured Parties and the legal capacity of the Substituted Pledgee and of the Substitute Pledgee to act as Collateral Agent on behalf and for the benefit of Secured Parties in the execution of this Assignment and Amendment Agreement and under the Asset Pledge Agreement, and the legal capacity and authority of its respective representatives to execute this Assignment and Amendment Agreement.
| II. | The Substitute Pledgee hereby represents and warrants that: |
(a) It is a national association legally organized and validly existing under the laws of the United States of America, acting on behalf and for the benefit of the Secured Parties, as Collateral Agent pursuant to the terms of the Credit Agreement.
(b) Its representative is duly authorized to enter into this Assignment and Amendment Agreement, which authority has not been revoked or modified in any manner whatsoever.
| III. | The Substituted Pledgee hereby represents and warrants that: |
3
(a) It is a bank (institución de banca múltiple) legally organized and validly existing under the laws of Mexico.
(b) Its representative is duly authorized to enter into this Assignment and Amendment Agreement, which authority has not been revoked or modified in any manner whatsoever.
NOW, THEREFORE the Parties have agreed to the following:
CLAUSES
FIRST. Assignment of the Substituted Pledgee’s Rights and Obligations in favor of the Substitute Pledgee.
(a) The Substituted Pledgee hereby assigns and transfers all its rights and obligations under the Asset Pledge Agreement to the Substitute Pledgee, and the Substitute Pledgee hereby accepts such assignment and transfer. As a consequence of the assignment herein, the Substitute Pledgee will act herefrom as Pledgee under the Asset Pledge Agreement.
(b) In view of the foregoing, the Parties hereby agree that from the date of execution of this Assignment and Amendment Agreement (i) each reference to the “Pledgee” under the Asset Pledge Agreement, shall mean a reference to the Substitute Pledgee; (ii) each reference in the Asset Pledge Agreement to “this Agreement”, “hereunder”, “hereof” or similar words referring to the Asset Pledge Agreement, shall mean and be a reference to the Asset Pledge Agreement, as amended by this Assignment and Amendment Agreement and (iii) each reference to the “Credit Agreement” under the Asset Pledge Agreement, shall mean and be a reference to the Credit Agreement, as defined herein.
(c) Each of the Pledgors hereby agrees and acknowledges that the Substitute Pledgee in its capacity as Collateral Agent under Asset Pledge Agreement, shall have no liability or responsibility whatsoever for any event, circumstance, act or omission by any party, prior to the date hereof and the Substituted Pledgee shall have no liability or responsibility whatsoever for any event, circumstance, act or omission by any party after the date hereof.
(d) Each of the Pledgors grants the Substituted Pledgee the fullest release available under applicable law with respect to the acts of the Substituted Pledgee, in its capacity as pledgee under the Asset Pledge Agreement, and waives any right or claim it may have resulting from such actions against the Substituted Pledgee, and expressly releases the Substituted Pledgee of any and all liabilities therefrom, except in the case of negligence, bad faith or willful misconduct of the Substituted Pledgee. Furthermore, the Pledgors agree to indemnify and hold harmless the Substituted Pledgee with respect to any actions, losses, liabilities, damages, claims or direct costs and expenses, prior to the date hereof, in terms of Clause Twelfth of the Asset Pledge Agreement.
SECOND. Registration.
4
(a) As required under Articles 365, 366 and 376 of the LGTOC and 204, 205, 206 and 212 of the RSF, the Pledgors:
(1) on the date hereof, execute and formalize this Assignment and Amendment Agreement before a Mexican notary public;
(2) shall file for registration, within fifteen (15) calendar days following the date hereof (with such extensions as the Substitute Pledgee may grant in its sole discretion), this Assignment and Amendment Agreement before the RFM and the RPPC;
(3) shall file this Assignment and Amendment Agreement for registration with the Registry of Guaranties on Movable Assets within fifteen (15) calendar days following the date hereof (with such extensions as the Substitute Pledgee may grant in its sole discretion); and
(4) shall obtain and deliver to the Substitute Pledgee written confirmation, in terms satisfactory to the Substitute Pledgee, of the registration of this Assignment and Amendment Agreement with (i) the RFM and the Registry of Guaranties on Movable Assets, within thirty (30) Business Days from the date of its filing before the RFM and the Registry of Guaranties on Movable Assets, respectively (with such extensions as the Substitute Pledgee may grant in its discretion), and (ii) the RPPC, within one hundred and twenty (120) calendar days from the date of its filing before the RPPC (with such extensions as the Substitute Pledgee may grant in its sole discretion).
(b) The Pledgors shall pay any registration fees, taxes, notary public fees and any related fees, costs and expenses incurred in connection with the formalization and registration of this Assignment and Amendment Agreement as aforesaid. The Substitute Pledgee and the Substituted Pledgee shall in no event be liable for any of such fees, taxes costs or expenses. The rejection or delay by any registry of the registration of this Assignment and Amendment Agreement shall in no way affect the obligations of the Pledgors under this Clause.
THIRD. Delivery of Documents.
As a consequence of the assignment of the Substituted Pledgee’s rights and obligations in favor of the Substitute Pledgee,
(a) The Substituted Pledgee hereby delivers to the Substitute Pledgee who hereby expressly acknowledges receipt of, originals of the first original copy (primer testimonio) of the public deeds containing the Original Asset Pledge Agreement and the First Amendment to the Asset Pledge Agreement, duly registered at the RPPC, and the Registry of Guaranties on Movable Assets as well as the original evidence of registration of the Original Asset Pledge Agreement and the First Amendment to the Asset Pledge Agreement with the RFM.
5
(b) The Parties hereby agree to execute and deliver any and all documents reasonably required to carry out the registrations described in Clause Second herein, including but not limited, the execution by the Substituted Pledgee and the Substitute Pledgee of the documents reasonably required for the registration of this Assignment and Amendment Agreement with the RPPC and the Registry of Guaranties on Movable Assets.
FOURTH. Ratification of the Terms of the Asset Pledge Agreement.
The Parties agree and confirm that the only amendments to the Asset Pledge Agreement are those set forth in this Assignment and Amendment Agreement. The Pledgors and the Substitute Pledgee hereby confirm and ratify all of the terms and conditions of the Asset Pledge Agreement which are, and continue to be, in full force and effect.
FIFTH. No Novation.
The execution of this Assignment and Amendment Agreement shall not constitute (i) a novation (novación) of the obligations of the Pledgors and the Substitute Pledgee under the Asset Pledge Agreement or (ii) a novation (novación), modification or payment of the Obligations.
SIXTH. Notices.
(a) All notices and other communications related to this Agreement, shall be in writing, in the English and Spanish languages, and shall be delivered or sent to the domiciles or facsimile numbers set forth below, or in any other domicile or facsimile number designated by each party or its representatives by written notice to the other party. Such notices and communications shall be delivered or sent (i) by hand, (ii) by courier, or (iii) by facsimile. The parties for such effects designate the following domiciles:
The Pledgors:
Kansas City Southern de México, S.A. de C.V.
Arrendadora KCSM, S. de X.X. de C.V.
Highstar Harbor Holdings México, S. de X.X. de C.V.
MTC Puerta México, S. de X.X. de X.X.
Xxxxx a México, S.A. de X.X.
Xxxxxx Urales No. 625
Col. Xxxxx xx Xxxxxxxxxxx
00000, Xxxxxx D.F.
Facsimile: (5255) 9178 5600 ext. 22179
Telephone: (5255) 0000 0000
Attention: Legal Department (Departamento Jurídico)
6
The Substituted Pledgee:
Scotiabank Inverlat, S.A., Institución de Banca Múltiple, Grupo Financiero Scotiabank Inverlat
Blvd. Xxxxxx Xxxxx Xxxxxxx No. 1, 2nd floor
Col. Xxxxx xx Xxxxxxxxxxx, X.X. 00000
Xxxxxx, X.X.
Telephone: 0000 00000000
Facsimile: 5255 52292010
Attention: Xxxxxxx Xxxxxxxx Xxxxxxxx
Email: xxxxxxxxxx@xxxxxxxxxx.xxx.xx
cc: The Bank of Nova Scotia
000 Xxxx Xxxxxx Xxxx, 0xx Xxxxx Xxxxxxx, Xxxxxxx Xxxxxx X0X0X0
GWS-Agency & U.K. Loan Operations
Telephone: 000 0000000
Facsimile: 000 0000000
Attention: Xxxxxxx Xxx
Email: xxxxxxx_xxx@xxxxxxxxxxxxx.xxx
The Substitute Pledgee:
JPMorgan Chase Bank, N.A.
Loan and Agency Services Group
0000 Xxxxxx, Xxxxx 00
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000 0000 / (000) 000 0000
Facsimile: (000) 000 0000
Attention: Xxxxxx Xxxxxx/Xxxx Xxxxxxxx
cc: JPMorgan Chase Bank, N.A.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
(b) Any Party may change its domicile to receive notices pursuant to this Assignment and Agreement by giving written notice not less than five (5) Business Days prior to the date on which such change shall become effective in accordance with the provisions of this Clause.
(c) Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when the confirmation of transmission thereof is received by the transmitter; provided that, as long as it is authorized by applicable law, the
7
impossibility of delivering notices due to changes in the addresses that have not been notified to the other Party hereto, or the refusal of any party to accept any notice, shall be considered received on the date of such delivery to the prior address or refusal to accept a notice.
SEVENTH. Governing Law and Jurisdiction.
This Assignment and Amendment Agreement shall be governed by and construed in accordance with the federal laws of Mexico. For the interpretation, construction, performance and enforcement of this Assignment and Amendment Agreement, the Parties irrevocably submit to the jurisdiction of the federal courts located in the Federal District, and waive any right to any jurisdiction to which they may be entitled by reason of their respective present or future domicile.
[signature pages follow]
8
IN WITNESS WHEREOF, the Parties execute this Assignment and Amendment Agreement as of the date first above written.
PLEDGOR
KANSAS CITY SOUTHERN DE MÉXICO, S.A. de C.V.
| Xxxxxxx Xxxxxx Xxxx BY: Xxxxxxx Xxxxxx Xxxx TITLE: Attorney-in-Fact |
PLEDGOR
ARRENDADORA KCSM. S. DE X.X. DE C.V.
| Xxxxxxx Xxxxxx Xxxx BY: Xxxxxxx Xxxxxx Xxxx TITLE: Attorney-in-Fact |
PLEDGOR
HIGHSTAR HARBOR HOLDINGS
MEXICO, S. DE X.X. de C.V.
| Xxxxxxx Xxxxxx Xxxx BY: Xxxxxxx Xxxxxx Xxxx TITLE: Attorney-in-Fact |
9
| PLEDGOR
MTC PUERTA MEXICO, S. DE X.X. de C.V.
Xxxxxxx Xxxxxx Xxxx BY: Xxxxxxx Xxxxxx Xxxx TITLE: Attorney-in-Fact
|
| PLEDGOR
VAMOS A MÉXICO, S.A. de C.V.
Xxxxxxx Xxxxxx Xxxx BY: Xxxxxxx Xxxxxx Xxxx TITLE: Attorney-in-Fact |
00
| XXX XXXXXXXXXXX XXXXXXX
XXXXXXXXXX INVERLAT, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE, GRUPO FINANCIERO SCOTIABANK INVERLAT, as former collateral agent, acting on its own behalf and on behalf and for the benefit of the Secured Parties
/s/ Oscar Xxxxx Xxxxxxxx Xxxxxxx BY: Xxxxx Xxxxx Xxxxxxxx Xxxxxxx TITLE: Attorney-in-Fact
/s/ Xxxxx Xxxxxx Xxxxxx BY: Xxxxx Xxxxxx Xxxxxx TITLE: Attorney-in-Fact
|
| THE SUBSTITUTE PLEDGEE
JPMORGAN CHASE BANK, N.A., as Collateral Agent, acting on its own behalf and on behalf and for the benefit of the Secured Parties
/s/ Xxxxxxx Gras Xxxxx Xxxxxxx BY: Eduardo Gras Xxxxx Xxxxxxx TITLE: Attorney-in-Fact |
11
Exhibit “A”
Original Asset Pledge Agreement (without exhibits)
12
Exhibit “B”
First Amendment to the Asset Pledge Agreement (with exhibits)
13
Exhibit “C”
Credit Agreement
14
