EX-10.10.2





Exhibit
10.10.2

EXECUTION VERSION







 

 

AMENDMENT No. 2

to

CREDIT AGREEMENT




dated as of December 19, 2008



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. 2 TO CREDIT AGREEMENT, dated as of December 19, 2008 (this “Amendment”), is
entered into among KANSAS CITY SOUTHERN DE MÉXICO, S.A. DE C.V., a corporation with variable
capital (sociedad anớnima de capital variable) organized under the laws of Mexico (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 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, the “Credit Agreement”); and



     WHEREAS, the Majority Lenders 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;



     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 hereby amended by deleting the existing
definition of “Additional Dividends” in its entirety.



     (b) Section 7.3(b) of the Credit Agreement is hereby amended by deleting the existing
Section 7.3(b) in its entirety and substituting the following therefor:




     “(b) the declaration or payment of any Restricted Payment to its shareholders by the Borrower for
any fiscal quarter of the Borrower commencing after March 31, 2008; provided that: (i) the amount
of such Restricted Payment shall not exceed an aggregate amount equal to: (A) US$20,000,000 plus
50% of Consolidated Net Income accrued on a cumulative basis during the period (deemed for purposes
of this Section 7.3(b) to be one accounting period) commencing on January 1, 2005 and ending on the
last day of the fiscal quarter immediately preceding the date of payment of such Restricted Payment
(each such date, a “Restricted Payment Termination Date”) less (B) the aggregate amount of any
Restricted Payment distributed or paid during the period beginning on January 1, 2005 and ending on
the last day of the fiscal quarter immediately preceding any such Restricted Payment Termination
Date; (ii) the Borrower shall have delivered to the



Amendment No. 2

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Administrative Agent the applicable financial statements for the fiscal quarter ending on such
Restricted Payment Termination Date in accordance with Section 6.2; and (iii) as of: (A) the
Restricted Payment Termination Date for such Restricted Payment and (B) the date of payment of such
Restricted Payment, no Default or Event of Default shall exist or would exist after the making
thereof; provided that any breach of the covenant set forth in Section 7.1(b) that is attributable
solely to the payment of a Restricted Payment made by the Borrower as set forth in clause (e) of
the definition of “Consolidated Fixed Charges” shall not preclude or otherwise limit the payment of
such Restricted Payment under this Agreement and such breach shall not be deemed a Default or an
Event of Default under this Agreement. Any Restricted Payment payable hereunder shall be payable
during the fiscal quarter in which the date of declaration of such Restricted Payment occurred;
provided that the Borrower shall be permitted to declare an Restricted Payment during the fiscal
quarter ending on December 31, 2008 and pay such Restricted Payment in one or more fiscal quarters
during the fiscal year ending on December 31, 2009.”



     SECTION 3. 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 Credit Agreement are (or after giving
effect hereto will be) 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 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 4. 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 5. 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:



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     (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 Credit Agreement, including legal fees of special
U.S. and Mexican counsel to the Administrative Agent and (ii) the fees payable pursuant to
Section 6.



     SECTION 6. 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) 0.10%
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 on
the Effectiveness Date.



     SECTION 7. 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 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.



     SECTION 8. Governins 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 9. 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 10. 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 11. 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 MÉXICO, S.A.

DE C.V., as the Borrower

 	 
	 	By:  	/s/
Rodrigo Flores Leon
 	 
	 	 	Name:  	Rodrigo Flores Leon 	 
	 	 	Title:  	Attorney-in-Fact 	 
	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ARRENDADORA KCSM, S. DE R.L. DE C.V.,

    as the Guarantor

 	 
	 	By:  	/s/
Rodrigo Flores Leon
 	 
	 	 	Name:  	Rodrigo Flores Leon 	 
	 	 	Title:  	Attorney-in-Fact 	 
	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



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	 	BANK OF AMERICA, N.A.,

    as the Administrative Agent

 	 
	 	By:  	/s/ Robert Rittelmeyer
 	 
	 	 	Name:  	Robert Rittelmeyer 	 
	 	 	Title:  	Vice President 	 
	 



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	 	LENDERS:




BBVA BANCOMER, S.A., INSTITUCIÓN DE

BANCA MÚLTIPLE, GRUPO FINANCIERO

BBVA BANCOMER, GRAND CAYMAN

BRANCH

 	 
	 	By:  	/s/
Natividad Justo
 	 
	 	 	Name:  	Natividad Justo 	 
	 	 	Title:  	 	 
	 
	 	By:  	/s/
Luis de Guerrero
 	 
	 	 	Name:  	Luis de Guerrero 	 
	 	 	Title:  	 	 
	 



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	 	BANK OF AMERICA, N/A.

 	 
	 	By:  	/s/
Gustavo Muñtz
 	 
	 	 	Name:  	Gustavo Muñtz 	 
	 	 	Title:  	Senior  Vice-President 	 
	 



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	 	EXPORT DEVELOPMENT ÇANADA

 	 
	 	By:  	/s/ Talal M. Kairouz
 	 
	 	 	Name:  	Talal M. Kairouz 	 
	 	 	Title:  	Asset Manager 	 
	 
	 	 	 
	 	By:  	/s/ Shaun Enright
 	 
	 	 	Name:  	Shaun Enright 	 
	 	 	Title:  	Asset Manager 	 
	 



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	 	KFW

duly authorized on behalf of KFW

 	 
	 	By:  	/s/ 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	/s/  	 
	 	 	Name:  	 	 
	 	 	Title:  		 
	 



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	 	BANK OF MONTREAL

 	 
	 	By:  	/s/ William Thomson
 	 
	 	 	Name:  	William Thomson 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



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	 	THE BANK OF NOVA SCOTIA

 	 
	 	By:  	/s/  Marian Lawson
 	 
	 	 	Name:  	Marian Lawson 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



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	 	COMERICA BANK

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



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