AMENDMENT
No. 3 AND WAIVER NO. 2
to CREDIT AGREEMENT
dated
as of February 11, 2009
KANSAS
CITY SOUTHERN DE MÉXICO, S.A. DE C.V.,
as Borrower,
ARRENDADORA
KCSM, S. DE R.L. DE C.V.,
as Guarantor,
BANK
OF AMERICA, N.A.,
as Administrative Agent
THIS AMENDMENT NO. 3 AND WAIVER NO. 2 TO CREDIT
AGREEMENT , dated as of February 11, 2009 (this
“ Amendment ”), is entered into 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 México (the
“ Borrower ”), ARRENDADORA KCSM, S. DE R.L. DE
C.V., a corporation with variable capital ( sociedad de
responsabilidad limitada de capital variable ) organized under
the laws of Mexico (the “ Guarantor ”), 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” pursuant to
Section 11.8(b) of the Existing Credit Agreement, 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 ”).
WHEREAS , the Borrower, the Guarantor, the Lenders
and the Administrative Agent have entered into the Credit
Agreement, dated as of June 14, 2007 (as amended through the
date hereof, the “ Existing Credit Agreement ”
and as amended and modified by this Amendment, the “
Amended Credit Agreement ”);
WHEREAS , the Majority Lenders desire to amend the
Existing Credit Agreement as set forth below, in accordance with
Section 11.3 of the Existing Credit Agreement, subject to the
conditions set forth herein;
WHEREAS , the Majority Lenders desire to waive
certain obligations of the Borrower under the Existing 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; Other Interpretive
Provisions . (a) Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to them
in the Existing Credit Agreement.
(b) The
rules of interpretation set forth in Section 1.2 of the
Existing Credit Agreement shall apply to this Amendment.
SECTION
2. Amendments . Effective on (and subject to the
occurrence of) the Effectiveness Date, the provisions of the
Existing Credit Agreement referred to below are hereby amended in
accordance with this Section 2 .
(a) Sections 7.4(a)
through (d) of the Existing Credit Agreement are hereby
amended by deleting the existing Sections 7.4(a) through
(d) in their entirety and substituting the following
therefor:
(a)
Investments existing on the Effective Date and set forth on
Schedule 7.4 ;
Amendment
No. 3 and Waiver No. 2
to Credit Agreement
2
(b)
Temporary Cash Investments;
(c)
stock, obligations or securities received in satisfaction of
judgments;
(d)
Investments in any Loan Party; and
(e)
Investments of $4,207,500 in Panama Canal Railway Company made on
December 28, 2007.
(b) The
Existing Credit Agreement is hereby amended by adding to
Schedule 7.4 thereto the following as new clause (3) to
such Schedule:
3.
$138,670,761.00 Mexican pesos ($10.3 Million US Dollars) loan from
Borrower to NAFTA Rail, S.A. de C.V. made on
December 19, 2005
SECTION
3. Waiver. (a) The Majority Lenders hereby waive
any Default or Event of Default under Sections 8.1(b) and
(c) of the Existing Credit Agreement to the extent, and only
to the extent, of the Borrower’s noncompliance with
Section 7.4 of the Existing Credit Agreement as a result of
the Investment by Borrower in Panama Canal Railway Company (“
PCRC ”) on December 28, 2007.
(b) Each
of the Borrower and the Guarantor hereby agrees that the waivers
specifically described in clause (a) above shall not
constitute and shall not be deemed a waiver of any other Default or
Event of Default, whether arising as a result of further violations
of Section 7.4 of the Existing Credit Agreement or otherwise,
or a waiver of any rights or remedies arising as a result of such
other Defaults or Events of Default. The failure of Borrower to
comply with Section 7.4 of the Existing Credit Agreement other than
as described above shall constitute an Event of Default.
SECTION
4. Representations and Warranties . Each of the
Borrower and the Guarantor represents and warrants to the
Administrative Agent and the Lenders that:
(a) The
representations and warranties made in the Existing Credit
Agreement, after giving effect hereto, are true and correct as if
made on the date hereof.
(b) The
execution and delivery by each of the Borrower and the Guarantor of
this Amendment and the performance by it of its obligations under
the Amended Credit Agreement: (i) are within its corporate
powers, (ii) have been duly authorized by all necessary
corporate action and (iii) do not and will not contravene or
conflict with any provision of: (A) its organizational
documents, (B) any Applicable Law, decre
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