EX-10.43.3







EXHIBIT 10.43.3




 





AMENDMENT No. 3 AND WAIVER NO. 2

to CREDIT AGREEMENT




dated
as of February 11, 2009




among




KANSAS
CITY SOUTHERN DE MÉXICO, S.A. DE C.V.,

as Borrower,




ARRENDADORA KCSM, S. DE R.L. DE C.V.,

as Guarantor,




CERTAIN LENDERS,




and




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”).



RECITALS




     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






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     (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, 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.



     (c) Each of this Amendment and the Amended Credit Agreement, is a legal, valid and binding
obligation of the Borrower and the Guarantor, as applicable, enforceable against each such Person
in accordance with its terms, in each case except as may be limited by bankruptcy,



Amendment No. 3 and Waiver No. 2

to Credit Agreement





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insolvency, reorganization, moratorium or similar laws affecting the enforceability of the
rights of creditors generally.




     SECTION 5. Effect of Amendment. All provisions of the Existing 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 Amended Credit
Agreement. This Amendment shall not be deemed to expressly or impliedly waive, amend or supplement
any provision of the Existing Credit Agreement other than as expressly set forth herein.



     SECTION 6. Effectiveness of Amendment. This Amendment shall become effective on the
date (the “Effectiveness Date”) when, and only when the following conditions have been satisfied:



     (a) The Administrative Agent shall have received the following documents, each in form and
substance satisfactory to the Administrative Agent:




     (i) Executed Amendment. This Amendment, duly executed and delivered by the
parties hereto;




     (ii) Organizational Documents. 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




     (iii) Authorizations. Documents (including appropriate resolutions of its
shareholders or the Board of Directors or similar body) evidencing the due authorization of
the execution, delivery and performance by the Borrower and the Guarantor of this Amendment,
or a certification from an authorized officer of the Borrower and the Guarantor if such
documents are not required by Applicable Law; and



     (b) The Administrative Agent shall have received evidence of payment of: (i) the fees and
expenses then due and payable under Section 11.2(a) of the Existing Credit Agreement, including
reasonable legal fees of special U.S. and Mexican counsel to the Administrative Agent and (ii) the
fees payable pursuant to Section 7.



     SECTION 7. Amendment Fee. The Borrower agrees to pay to the Administrative Agent for
the account of each Lender that executes this Amendment a fee in an amount equal to: (a) 0.25%
multiplied by (b) the sum of: (i) such Lender’s undrawn Commitments as of the Effectiveness Date
plus (ii) such Lender’s Loans as of the Effectiveness Date. Such fee shall be payable in full for
those Lenders who have submitted their signatures before or on the Effectiveness Date.



     SECTION 8. Ratification and Confirmation of Guarantee. The Guarantor hereby ratifies
and reaffirms the execution and delivery of the Guarantee set forth in Article IX of the Existing
Credit Agreement and confirms that such Guarantee remains in full force and effect after giving
effect to this Amendment and reaffirms the Guaranteed Obligations after giving effect to this
Amendment.



Amendment No. 3 and Waiver No. 2

to Credit Agreement





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     SECTION 9. 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 10. 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 11. Section Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this Amendment.



     SECTION 12. Loan Document. The parties hereto hereby acknowledge and agree that this
Amendment shall constitute a Loan Document for all purposes of the Existing Credit Agreement and
the other Loan Documents.



Amendment No. 3 and Waiver No. 2

to Credit Agreement





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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 MÉXICO, S.A. 

DE C.V., as the Borrower

 	 
	 	By:  	/s/ Paul J. Weyandt
 	 
	 	 	Name:  	Paul J. Weyandt 	 
	 	 	Title:  	Treasurer 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ARRENDADORA KCSM, S. DE R.L. DE C.V.,

   as the Guarantor

 	 
	 	By:  	/s/ Paul J. Weyandt
 	 
	 	 	Name:  	Paul J. Weyandt 	 
	 	 	Title:  	Treasurer 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Amendment No. 3 and Waiver No. 2

to Credit Agreement





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	 	BANK OF AMERICA, N.A.,

   as the Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Amendment No. 3 and Waiver No. 2

to Credit Agreement





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	 	LENDERS:





BBVA BANCOMER, S.A., INSTITUCIÓN DE

BANCA MÚLTIPLE, GRUPO FINANCIERO 

BBVA BANCOMER, GRAND CAYMAN 

BRANCH

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Amendment No. 3 and Waiver No. 2

to Credit Agreement





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	 	BANK OF AMERICA, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Amendment No. 3 and Waiver No. 2

to Credit Agreement





S-4









 





	 	 	 	 	 
	 	EXPORT DEVELOPMENT CANADA

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Amendment No. 3 and Waiver No. 2

to Credit Agreement





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	 	KFW

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Amendment No. 3 and Waiver No. 2

to Credit Agreement





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	 	BANK OF MONTREAL

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Amendment No. 3 and Waiver No. 2

to Credit Agreement





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	 	THE BANK OF NOVA SCOTIA

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Amendment No. 3 and Waiver No. 2

to Credit Agreement





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	 	COMERICA BANK

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Amendment No. 3 and Waiver No. 2

to Credit Agreement





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