Exhibit 4.6
FIRST WAIVER AND AMENDMENT TO THE CREDIT
AGREEMENT
FIRST WAIVER,
dated as of April 18, 2005 (the “ Waiver and
Amendment ”), under the Amended and Restated Credit
Agreement, dated as of June 24, 2004, (as amended,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”), among TFM, S.A. DE C.V., a
corporation with variable capital ( sociedad anonima de capital
variable ) organized under the laws of the United Mexican
States, (the “ Borrower ”), the several Banks
parties thereto, and JPMorgan Chase Bank, N.A. (f/k/a JPMorgan
Chase Bank), as Administrative Agent.
W I T N E S
S E T H :
WHEREAS, the
Borrower, the Banks and the Administrative Agent are parties to the
Credit Agreement; and
WHEREAS, the
Borrower has advised the Banks that it intends to issue a minimum
of $460,000,000 of senior notes (the “ New Notes
”), the proceeds of which will be used (i) to acquire
the Borrower’s outstanding Senior Discount Debentures
pursuant to a tender offer commenced on April 1, 2005,
(ii) to pay accrued and unpaid interest thereon, (iii) to
pay the fees of the underwriter associated with the issuance of the
New Notes and the tender offer, (iv) to pay the premium
related to the tender offer and (v) to pay other expenses,
including legal fees, not to exceed $2,000,000 relating to the
tender offer and the issuance of the New Notes (collectively, the
“ Permitted Purposes ”); and
WHEREAS, the
Borrower has further requested that the Credit Agreement be amended
to allow it to borrow up to $25,000,000 from Kansas City Southern
(as successor in interest by merger to Kansas City Southern
Industries, Inc., “ KCSI ”) on a fully
subordinated basis (the “Subordinated Intercompany
Debt”); and
WHEREAS, the
Borrower has requested the Banks (i) permit the issuance of
the New Notes notwithstanding the provisions of Section 6.9(b)(i)
of the Credit Agreement which limit the amount of New Notes to an
amount equal to or less than the principal amount of the Senior
Discount Debentures being refinanced and (ii) amend the Credit
Agreement to permit the Borrower to issue the Subordinated
Intercompany Debt; and
WHEREAS, the Banks
are willing to agree to such waiver and amendment, but only upon
the terms and subject to the conditions set forth
herein;
NOW
THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto hereby agree as
follows:
SECTION 1.
Defined Terms . Unless otherwise defined herein, capitalized
terms that are defined in the Credit Agreement are used herein as
therein defined.
SECTION 2. Waiver
to Credit Agreement. The Lenders hereby agree to waive, effective
as of the Effective Date, any Default or Event of Default under
Section 7.1(c) of the Credit Agreement that would otherwise
result from the issuance of New Notes having a principal
2
amount in excess of the principal
amount of the Senior Discount -Debentures being refinanced,
provided that any proceeds of the New Notes not used for the
Permitted Purposes shall be promptly used to prepay the Term Loans,
with any such prepayment being applied pro rata to the Tranches of
the Term Loans and to installments of principal due in each Tranche
in the inverse order of their maturity.
SECTION 3.
Amendment to Credit Agreement. Section 6.9 of the
Credit Agreement is hereby amended by (a) deleting the word
“and” at the end of the clause (g) thereof, (b)
re-lettering clause (h) as clause (i); and (c) adding the
following new clause (h) thereto:
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