Exhibit 10.1
EXECUTION VERSION
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AMENDMENT No. 1 and WAIVER No. 1
to
CREDIT AGREEMENT
dated as of December 19, 2007
among
KANSAS CITY SOUTHERN DE MEXICO, S.A. DE C.V.,
as Borrower,
ARRENDADORA KCSM, S. DE X.X. DE C.V.,
as Guarantor,
CERTAIN LENDERS,
and
BANK OF AMERICA, N.A.,
as Administrative Agent
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THIS AMENDMENT No. 1 AND WAIVER NO. 1 TO CREDIT AGREEMENT, dated as of
December 19, 2007 (this "Amendment"), is entered into among KANSAS CITY SOUTHERN
DE MEXICO, S.A. DE C.V., a corporation with variable capital (sociedad anonima
de capital variable) organized under the laws of Mexico (the "Borrower"),
ARRENDADORA KCSM, S. DE X.X. 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" after the date hereof pursuant to Section 11.8(b) of the
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").
RECITALS
WHEREAS, the Borrower, the Guarantor, the Lenders and the Administrative
Agent have entered into the Credit Agreement, dated as of June 14, 2007 (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) Section 1.1 of the Credit Agreement is amended
by replacing the current definition of "Capital Expenditures" with the following
definition:
"`Capital Expenditures' shall mean, with respect to any Person, for any
period, the sum of, without duplication, (a) all expenditures made by such
Person during such period for equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment in the consolidated statements of
cash flows of such Person for such period plus (b) the aggregate amount of
all Capitalized Lease Obligations assumed or incurred by such Person during
such period minus (c) the aggregate amount of Indebtedness incurred during
such period to finance the acquisition of New Equipment (excluding any
Indebtedness incurred during such period to refinance such New Equipment,
other than Tranche A Indebtedness incurred to acquire such New Equipment)."
(b) Section 7.8(d) of the Credit Agreement is amended by replacing the
reference to "90 days" in the third line thereof with a reference to "120 days."
(c) Section 7.9(i) of the Credit Agreement is amended by deleting the first
existing proviso in its entirety and substituting the following therefor:
"provided that the amount of any such Indebtedness incurred in any calendar
year shall not exceed the amount set forth below opposite such calendar
year:
2007 US$95,000,000
2008 US$140,000,000
2009 US$25,000,000
2010 US$20,000,000
2011 US$20,000,000"
SECTION 3. WAIVER. (a) The Majority Lenders hereby waive any Default or
Event of Default to the extent, and only to the extent, of the Borrower's
noncompliance with clause (b) of Section 7.1 of the Credit Agreement as of the
end of the fiscal quarter ending on December 31, 2007.
(b) Each of the Borrower and the Guarantor hereby agrees that the waiver
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 7.1(b) of the 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 7.1(b) of the Credit Agreement for any date, or any period ending on any
date, other than as described above shall constitute an Event of Default.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and each
Guarantor represents and warrants to the Administrative Agent and the Lenders
that:
(a) The representations and warranties made in the Credit Agreement are (or
after giving effect hereto will be) true and correct as if made on the date
hereof (other than any such representation or warranty which, by its term,
speaks as of a particular date), except that the representation made in Section
5.1(b) is hereby modified to reflect the transformation of Arrendadora from a
sociedad anonima de capital variable, or S.A. de C.V., to a sociedad de
responsabilidad limitada de capital variable (limited liability corporation), or
S. de X.X. de C.V., effective as of December 7, 2007, in accordance with and as
permitted by Section 5.1 of the Credit Agreement.
(b) The execution and delivery by each of the Borrower and the Guarantor of
this Amendment and the performance by it of its obligations hereunder: (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, decree, judgment, award,
injunction or similar legal restriction in effect, except to the extent that any
contravention thereof is not reasonably likely to have a Material Adverse Effect
or (C) any document or other contractual restriction binding upon or affecting
it or any of its Properties, except to the extent that any contravention thereof
is not reasonably likely to have a Material Adverse Effect.
SECTION 5. EFFECT OF AMENDMENT. All provisions of the Credit Agreement,
except as expressly amended and modified by this Amendment, shall remain in full
force and effect. After this Amendment becomes effective, all references in any
Loan Document (or any other document) referring to the Credit Agreement shall be
deemed to be references to the Credit Agreement as amended by this Amendment.
This Amendment shall not be deemed to expressly or impliedly waive, amend or
supplement any provision of the Credit Agreement other than as expressly set
forth herein.
SECTION 6. EFFECTIVENESS OF AMENDMENT. This Amendment shall become
effective on the date when the Administrative Agent shall have received
counterparts of this Amendment duly executed and delivered by each of the
Borrower, the Guarantor, the Administrative Agent and the Majority Lenders and
the following documents, each in form and substance satisfactory to the
Administrative Agent:
(a) certified copies of the Organizational Documents of each of the
Borrower and the Guarantor, as certified by an authorized officer of
each of the Borrower and the Guarantor, as applicable, and
(b) documents (including appropriate resolutions of its shareholders or
the Board of Directors or similar body) evidencing due authorization
of the execution, delivery and performance by it of this Amendment by
the Borrower and the Guarantor, or a certification from an authorized
officer of the Borrower and the Guarantor if such documents are not
required by Applicable Law.
SECTION 7. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAW OF THE STATE OF NEW YORK (NOT INCLUDING SUCH STATE'S CONFLICT OF LAWS
PROVISIONS OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
SECTION 8. COUNTERPARTS. This Amendment may be executed on any number of
separate counterparts (including by fax or electronic delivery), and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
SECTION 9. SECTION HEADINGS. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment (or the Credit Agreement).
SECTION 10. LOAN DOCUMENT. The parties hereto hereby acknowledge and agree
that this Amendment shall constitute a Loan Document for all purposes of the
Credit Agreement and the other Loan Documents.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as
of the day and year first above written.
KANSAS CITY SOUTHERN DE MEXICO, S.A.
DE C.V., as the Borrower
By:
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Name:
Title:
By:
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Name:
Title:
ARRENDADORA KCSM, S. DE R
as the Guarantor
By:
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Name:
Title:
By:
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Name:
Title:
BANK OF AMERICA, N.A.,
as the Administrative
By:
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Name:
Title: