EXHIBIT 10.10
EXECUTION COPY
AMENDMENT No. 1 and WAIVER No. 1
TO THE
CREDIT AGREEMENT
dated as of April 7, 2006
among
Kansas City Southern de México, S.A. de C.V.
(formerly known as TFM, S.A. de C.V.),
as Borrower
ARRENDADORA TFM, S.A. de C.V.,
as Guarantor
CERTAIN LENDERS,
BANK OF AMERICA, N.A.,
as Administrative Agent,
and
BBVA BANCOMER, S.A., INSTITUCIÓN DE BANCA
MÚLTIPLE, GRUPO
FINANCIERO BBVA BANCOMER,
as the Collateral Agent
THIS AMENDMENT No. 1 AND
WAIVER NO. 1 TO THE CREDIT AGREEMENT, dated as of
April 7, 2006 (this “Amendment”), is
entered into among Kansas City Southern de Mexico, S.A. de C.V.
(formerly known as TFM, S.A. de C.V., a corporation with variable
capital (sociedad anónima de capital variable)
organized under the laws of Mexico (the
“Borrower”), Arrendadora TFM, S.A. de C.V., a
corporation with variable capital (sociedad anónima de
capital variable) organized under the laws of the 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) of the Credit Agreement, as defined
below (each a “Lender”), 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”), and BBVA Bancomer,
S.A., Institucion de Banca Múltiple, Grupo Financiero BBVA
Bancomer, as the collateral agent for the Beneficiaries (as defined
in the Credit Agreement) (in such capacity, together with its
successors in such capacity, the “Collateral
Agent”).
RECITALS
WHEREAS, the Borrower,
the Guarantor, the Lenders, the Administrative Agent and the
Collateral Agent have entered into the Credit Agreement, dated as
of October 24, 2005 (the “Credit
Agreement”);
WHEREAS, the parties
hereto desire to amend the Credit Agreement as set forth below, in
accordance with Section 11.3 of the Credit Agreement,
subject to the conditions set forth herein; and
WHEREAS, the parties
hereto desire to waive certain obligations of the Borrower under
the Credit Agreement, subject to the conditions set forth
herein,
NOW THEREFORE, for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Certain Defined
Terms . Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the
Credit Agreement.
SECTION 2.
Amendments . (a) The parties
hereto hereby agree that the definition of
“Indebtedness” in Section..1.1 of the Credit
Agreement shall be deleted and the following definition shall be
inserted in proper alphabetical order:
“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;
Amendment No. 1 and Waiver
No. 1 to the Credit Agreement
2
(c) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit, financial guaranty insurance
policies or similar instruments;
(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.
(b) The parties hereto hereby agree to add the following
definition in Section 1.1 of the Credit Agreement which
shall be inserted in proper alphabetical order:
“Specified Deferred Payment Obligations” mean
all payment obligations as in effect as of April 1, 2006 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. that
accrue and are recorded on the Borrower’s balance sheet. Such
payment obligations are set forth on Schedule I to the Amendment
No. 1 and Waiver No. 1 to the Credit Agreement dated as
of April 7, 2006 among Kansas City Southern de México,
S.A. de C.V., Arrendadora TFM, S.A. de C.V., each of the lenders
that is a signatory thereto, Bank of America, N.A., as the
administrative agent and BBVA Bancomer, S.A., Institútion de
Banca Múltiple, Grupo Financiero BBVA Bancomer, as the
collateral agent.
(c) The
parties hereto hereby agree to eliminate the minimum and the
multiple borrowing thresholds of the Tranche A2 Loans that the
Borrower may request on a Borrowing Date under Section 2.
(b)(i), such that such Tranche A2 Loans may be borrowed in any
amount.
(d) The
parties hereto hereby agree that Section 6.2(b) of the
Credit Agreement shall be deleted and substituted with the
following:
“(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 September 30, 2005, the
unaudited consolidated financial statements of the Borrower
and
Amendment No. 1 and Waiver
No. 1 to the Credit Agreement
3
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
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