exv10w47



 







Exhibit 10.47




AMENDMENT NO. 1 TO

TRANSACTION AGREEMENT




     THIS AMENDMENT NO. 1 TO TRANSACTION AGREEMENT (this “Amendment”), is made and entered
into as of January 17, 2006, by and among KANSAS CITY SOUTHERN, a Delaware corporation
(“KCS”), THE KANSAS CITY SOUTHERN RAILWAY COMPANY, a Missouri corporation (“KCSR”),
NORFOLK SOUTHERN CORPORATION, a Virginia corporation (“NS”), and THE ALABAMA GREAT SOUTHERN
RAILROAD COMPANY, an Alabama corporation and Subsidiary of NS (“AGS”), with reference to
the following facts:


A. KCS, KCSR, NS and AGS are parties to that certain Transaction Agreement entered into as of
December 1, 2005 (the “Transaction Agreement”), pursuant to the terms of which the parties
thereto have agreed to form a joint venture for purposes of owning and operating certain Assets.



B. The Transaction Agreement and the related Company Agreement to be entered into at Closing
contemplated that KCS will make certain capital improvements to the Line after the Closing and NS
has agreed to contribute certain amounts to the Company, among other things, to pay for such
improvements.



C. KCS has determined those capital improvements to the Line set forth on Exhibit D of the Company
Agreement will be undertaken in advance of the Closing as part of its 2006 infrastructure program
and irrespective of the transaction among the parties to the Transaction Agreement. The parties
have determined that it is in the best interest of all parties for KCS to begin making such capital
improvements to the Line prior to the Closing. Further, the parties have determined that, should
all Required Governmental Consents be obtained, including the approval of the United States Surface
Transportation Board, these capital projects should be eligible to be reimbursed from the proceeds
of the transactions contemplated by the Transaction Agreement. In order to do so, the Transaction
Agreement and the form of Company Agreement attached as Exhibit A hereto must each be amended such
that KCS will be reimbursed by the Company following Closing for making such capital improvements
to the Line prior to Closing.




     NOW, THEREFORE, with reference to the foregoing facts and in consideration of the mutual
agreements and understanding set forth herein, the parties hereto, intending to be legally bound,
hereby agree as follows:



1. Defined Terms.



Capitalized terms used herein but not otherwise defined herein shall have the meaning assigned to
such terms in the Transaction Agreement.




2. Amendments.




     2.1 Section 1 of the Transaction Agreement is hereby amended by inserting the following new
definitions therein in the appropriate alphabetical order:



 









 





     “Budget” shall have the meaning given to that term in the Company Agreement.



     “Business Plan” shall have the meaning given to that term in the Company Agreement.



     “Fiscal Year” shall have the meaning given to that term in the Company Agreement.



     “Pre-Closing Capital Expenditures” shall have the meaning given to that term in the Company
Agreement.



     2.2 Section 2.2 of the Transaction Agreement is hereby amended by deleting the first and
second sentences thereof and inserting in lieu thereof the following two new sentences:



“KCS and NS shall cause the Company to use $260,000,000 (less any Pre-Closing Capital
Expenditures for which the Company reimburses KCS pursuant to clause (b) of the following
sentence) of the proceeds from the sale of the NS Interest plus any interest earned thereon
from time to time (the “Capital Proceeds”) for the capital expenditures anticipated to be
made in accordance with the Company Agreement and the Budgets (including any Rollover
Budgets) and Business Plans (as each such term is defined in the Company Agreement) for the
Company contemplated thereby. KCS and NS shall cause at Closing (a) up to $40,000,000 of
the proceeds from the sale of the NS Interest to be paid to reimburse KCS for capital
expenditures other than Pre-Closing Capital Expenditures made by KCS on the Line within the
two-year period ending on the Closing Date (none of which shall have been made in
anticipation of this Agreement) as presented on a schedule delivered to NS prior to the
Closing Date, which schedule shall be final and binding on NS if it accurately sets forth
expenditures made in accordance with the principles expressed in this sentence (the
different between $40,000,000 and such reimbursement shall be the “Excess Proceeds”), (b) up
to $20,000,000 of the proceeds from the sale of the NS Interest equal to the Pre-Closing
Capital Expenditures to be paid to reimburse KCS for Pre-Closing Capital Expenditures made
by KCS prior to the Closing Date in respect of the Proposed Capital Projects listed in
Exhibit D to the Company Agreement as set forth in the Company Agreement, the Budget for the
first Fiscal Year and the Business Plan for the first Fiscal Year, which amount shall be
presented on a schedule delivered to NS prior to the Closing Date, which schedule shall be
final and binding on NS if it accurately sets forth expenditures made in accordance with the
principles set forth in this sentence, and (c) the Excess Proceeds and any portion of the
Capital Proceeds not allocated at such time for capital expenditures in accordance with the
then current Budget or any Rollover Budget, as the case may be, and Business Plan (in the
aggregate, the “Excess Capital”) to be made available by the Company to provide the Partner
Financing pursuant to Article 4 below.



     2.3 Section 3.1(a) of the Transaction Agreement is hereby amended by deleting the first
sentence thereof and inserting in lieu thereof the following new first sentence:



“Subject to the terms and conditions of this Agreement, at the Closing, KCS and KCSR shall ,
and shall cause their respective Subsidiaries, as applicable, to, transfer, convey, assign
and delivery to the Company, all of their respective right, title and interest in the




2









 








Assets, free and clear of all Liens other than Permitted Liens, and in exchange for the
Assets, KCS and NS shall cause the Company to issue to KCS a membership interest in the
Company determined in accordance with Section 2.1(a) (as adjusted pursuant to
Section 2.1(b) and together with the Preferred Return, the “KCS Interest”).



     2.4 Exhibit A to the Transaction Agreement is hereby amended by amending and restating such
Exhibit in its entirety to read as set forth on Exhibit A attached hereto.



     2.5 Section 8.1 of the Transaction Agreement is hereby amended by inserting the following new
third sentence:



“Since the date of its formation, the Company has been a wholly-owned subsidiary of KCS and
has not (i) engaged in any business, (ii) conducted any operations, (iii) incurred any
liabilities or (iv) entered into any agreements or arrangements, other than, in each case,
in connection with the letter agreement by and between KCS and NS dated January 17, 2006,
this Agreement and the transactions contemplated by this Agreement.”



3. Limitation of Amendments.



The amendments set forth in Section 2 above are effective for the purposes set forth herein and
will be limited precisely as written and will not be deemed to (a) be a consent to any amendment,
waiver or modification of any other term or condition of the Transaction Agreement, (b) otherwise
prejudice any right or remedy that any party to the Transaction Agreement may now have or may have
in the future under or on in connection with the Transaction Agreement, or (c) be a consent to any
future amendment, waiver or modification of any other term or condition of the Transaction
Agreement.




4. Entire Agreement.



This Amendment, together with the Transaction Agreement, the Company Agreement, the Ancillary
Agreements and the Confidentiality Agreement, in each case including any attached exhibits and
schedules, contain the sole and entire agreement and understanding of the parties with respect to
the entire subject matter contained herein and therein, and any and all prior discussions,
negotiations, commitments and understandings, whether oral or otherwise, related to the subject
matter contained herein and therein are hereby merged herein and therein. Nothing in this
amendment, express or implied, is intended to confer upon any Person other than the parties hereto
any rights or remedies under or by way of this Amendment.




5. Assignment.



No party may assign its rights or obligations under this Amendment, and any attempted or purported
assignment or any delegation of any party’s duties or obligations arising under this Amendment to
any third party or entity shall be deemed to be null and void, and shall constitute a material
breach by such party of its duties and obligations under this Amendment; provided that NS may
assign its rights to any wholly-owned Subsidiary of NS.




3









 








6. Governing Law.



THE LAWS OF THE STATE OF DELAWARE SHALL GOVERN THE VALIDITY OF THIS AMENDMENT, THE CONSTRUCTION OF
ITS TERMS AND THE INTERPRETATION OF THE RIGHTS AND DUTIES ARISING HEREUNDER.




7. Severability.



Whenever possible each provision of this Amendment shall be interpreted in such manner as to be
effective and valid under applicable Law, but if any provision of this Amendment shall be or become
prohibited or invalid under applicable Law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such provision or the
remaining provisions of this Amendment.




8. Captions.



The various captions of this Amendment are for reference only and shall not be considered or
referred to in resolving questions of interpretation of this Amendment.




9. Counterparts.



This Amendment may be executed in any number of counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one and the same instrument.




10. Judicial Interpretation.



Should any provision of this Amendment require judicial interpretation, it is agreed that a court
or other tribunal, as described in Section 14.13 of the Transaction Agreement, interpreting or
construing the same shall not apply a presumption that the terms hereof shall be more strictly
construed against any Person by reason of the rule of construction that a document is to be
construed more strictly against the Person who itself or through its agent prepared the same, it
being agreed that all parties have participated in the preparation of this Amendment.




11. Dispute Resolution.



Each of the parties hereto stipulates and agrees that the dispute resolution procedures set forth
in Section 14.13 of the Transaction Agreement shall apply to any dispute, controversy or claim
arising out of or relating to this Amendment or the breach, termination or validity thereof.




[Signature Page Follows]




4









 








     IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Transaction Agreement as
of the date first above written.



	 	 	 	 	 	 	 
	 	 	KANSAS CITY SOUTHERN
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	Name: Michael R. Haverty	 	 
	 

	 	 	 	Title: Chairman, President and	 	 
	 

	 	 	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	THE KANSAS CITY SOUTHERN RAILWAY
 COMPANY
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	Name: Michael R. Haverty	 	 
	 

	 	 	 	Title: Chairman of the Board	 	 
	 
	 	 	 	 	 	 
	 	 	NORFOLK SOUTHERN CORPORATION
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	Name: Kathryn B. McQuade	 	 
	 

	 	 	 	Title: Executive Vice
President Planning and 

Chief Information Officer	 	 
	 

	 	 	 		 	 
	 
	 	 	 	 	 	 
	 	 	THE ALABAMA GREAT SOUTHERN 
 RAILROAD COMPANY
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	Name: James A. Squires	 	 
	 

	 	 	 	Title: Vice President	 	 






5









 






EXHIBIT A



COMPANY AGREEMENT


[See Attached]