exv10w2



 






Exhibit 10.2




SUPPLEMENTAL INDENTURE




     SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of June 10, 2005, between THE
KANSAS CITY SOUTHERN RAILWAY COMPANY, a corporation duly organized and existing under the laws of
the State of Missouri, and the successor by merger to each of Mid-South Microwave, Inc., and
Rice-Carden Corporation (the “Company”), KANSAS CITY SOUTHERN (the “Parent”), and GATEWAY EASTERN
RAILWAY COMPANY, PABTEX GP, LLC, PABTEX, L.P., SIS BULK HOLDING, INC., SOUTHERN DEVELOPMENT
COMPANY, SOUTHERN INDUSTRIAL SERVICES, INC., and TRANS-SERVE, INC. (together with the Parent, the
“Note Guarantors”), and U.S. BANK NATIONAL ASSOCIATION, a national banking corporation, as trustee
under the indenture referred to below (the “Trustee”).



W I T N E S S E T H :




     WHEREAS, the Company and the Note Guarantors have heretofore executed and delivered to the
Trustee an Indenture (the “Indenture”) dated as of June 12, 2002, providing for the issuance of an
unlimited principal amount of 71/2% Senior Notes due 2009 (the “Securities”); and



     WHEREAS, Section 9.02 of the Indenture provides that, with the written consent of the Holders
of a majority in aggregate principal amount of the outstanding Securities (the “Requisite
Consents”), the Company, the Note Guarantors and the Trustee may amend the Indenture;



     WHEREAS, the Company has completed a consent solicitation (the “Consent Solicitation”) whereby
the Company has obtained the Requisite Consents to amend certain sections of the Indenture (the
“Amendments”);



     WHEREAS, in connection with the Consent Solicitation, Holders that delivered a valid consent
on a timely basis (the “Consenting Holders”) are entitled to receive a cash fee (the “Cash Fee”)
with respect to the Securities in respect of which they have validly consented if the conditions to
the Consent Solicitation are met;



     WHEREAS, the Company, the Note Guarantors, and the Trustee are entering into this Supplemental
Indenture in order to set forth the Amendments; and



     WHEREAS, this Supplemental Indenture has been duly authorized by all necessary corporate
action on the part of the Company, the Note Guarantors and the Trustee.



     NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company, the Note Guarantors and
the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the
Securities as follows:



 









 





ARTICLE 1

AMENDMENT OF THE INDENTURE




     Section 1.01. Amendment to Section 1.01 of the Indenture. The Company, the Note Guarantors
and the Trustee hereby agree to amend Section 1.01, and Section 1.01 is hereby amended by



     (a) adding the following definitions to Section 1.01 in the appropriate alphabetical order:



          “Mexico” means the Estadaos Unidos Mexicanos (the United Mexican States) and any branch of
power, ministry, department, authority or statutory corporation or other entity (including a
trust), owned or controlled directly or indirectly by the Estados Unidos Mexicanos or any of the
foregoing created by law as a public entity; and




          “VAT Claim” means TFM’s claim for a refund, credit or other payment of amounts of value added
tax previously paid by TFM to Mexico.




     (b) deleting the word “and” at the end of sub-section (c)(iii) of the definition of “Asset
Disposition” in Section 1.01 and adding the following paragraph to the end of such definition of
“Asset Disposition”:



     ; and




     (v) sales or other dispositions of the VAT Claim if and to the extent (y)
there are no cash proceeds thereof or (z) such cash proceeds are used to finance (or
set aside in a reserve to finance) the repurchase of the Capital Stock of TFM from
Mexico and the satisfaction of obligations relating to the settlement thereof.



     Section 1.03. Amendment to Section 4.04 of the Indenture. The Company, the Note Guarantors
and the Trustee hereby agree to amend Section 4.04, and Section 4.04 is hereby amended by deleting
the word “or” at the end of sub-section (b)(vi) and adding the following paragraph following
sub-section (b)(vii) thereof:



     ; or




     (viii) the repurchase by TFM of, or the declaration and payment of dividend by
TFM to Grupo TFM to allow Grupo TFM to repurchase, the Capital Stock of TFM from
Mexico:




     (y) if, after giving effect to such repurchase and any Indebtedness
Incurred to fund such repurchase, the Consolidated Coverage Ratio would be
greater than 2.0:1; or




     (z) to the extent that the consideration paid to Mexico to repurchase
the Capital Stock of TFM consists of a surrender or reduction of the VAT
Claim or any portion thereof, or if and to the extent cash has been realized
in respect to the VAT Claim, the consideration paid pursuant to this Section
4.04(b)(viii)(z) does not exceed the amount of such cash, or any combination
of such surrender or reduction or such cash realized.



-2-









 





ARTICLE 2

MISCELLANEOUS




     2.01. Ratification of Indenture, Supplemental Indentures Part of Indenture. Except as
expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the
terms, conditions and provisions thereof shall remain in full force and effect. Upon the execution
and delivery of this Supplemental Indenture by the Company, the Note Guarantors and the Trustee,
the Indenture shall be supplemented in accordance herewith, this Supplemental Indenture shall form
a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter
authenticated and delivered shall be bound hereby.



     Notwithstanding the foregoing, the Amendments set forth herein will have no effect, and this
Supplemental Indenture shall be null and void, if the Cash Fee is not paid to the Consenting
Holders in accordance with the terms and conditions of the Consent Solicitation.



     2.02. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.



     2.03. Trustee Makes No Representation. The Trustee makes no representation as to the validity
or sufficiency of this Supplemental Indenture. The recitals and statements herein are deemed to be
those of the Company and the Note Guarantors and not of the Trustee.



     2.04. Severability Claus. In case any provision of this Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.



     2.04. Counterparts. The parties may sign any number of copies of this Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement.



     2.05. Definitions, Effect of Headings. All capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Indenture. The section headings herein are for
convenience only and shall not effect the construction thereof.



     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.



THE KANSAS CITY SOUTHERN

RAILWAY COMPANY



/s/ Ronald G. Russ



Executive Vice-President and Chief Financial Officer




-3-









 






KANSAS CITY SOUTHERN



/s/ Ronald G. Russ

Executive Vice-President and Chief Financial Officer



-4-









 





GATEWAY EASTERN RAILWAY COMPANY



/s/ Paul J. Weyandt

Vice-President and Treasurer



PABTEX GP, LLC



By:



Southern Industrial Services, Inc., its sole member



s/s Ronald G. Russ

Vice-President and Treasurer



PABTEX, L.P.



By:



Southern Industrial Services, Inc., its general partner



/s/ Ronald G. Russ

Vice-President and Treasurer



SIS BULK HOLDING, INC.



/s/ Ronald G. Russ

Vice-President and Treasurer



SOUTHERN DEVELOPMENT COMPANY



/s/ Ronald G. Russ

Vice-President and Treasurer



SOUTHERN INDUSTRIAL SERVICES, INC.



/s/ Ronald G. Russ

Vice-President and Treasurer



TRANS-SERVE, INC.



/s/ Ronald G. Russ

Vice-President and Treasurer



U.S. BANK NATIONAL ASSOCIATION



/s/ Richard Prokosch

Vice President




-5-