EX-10.2






EXHIBIT 10.2




FIRST SUPPLEMENTAL INDENTURE




FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”) dated as of February 13,
2012 (the “Effective Date”), among THE KANSAS CITY SOUTHERN RAILWAY COMPANY, a corporation duly
organized and existing under the laws of the State of Missouri (the “Company”), KANSAS CITY
SOUTHERN (the “Parent”), and GATEWAY EASTERN RAILWAY COMPANY, PABTEX, INC., (the successor by
merger to each of PABTEX GP, LLC, PABTEX I, L.P. and 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, as trustee under the indenture referred to
below (the “Trustee”).



WITNESSETH:




WHEREAS, the Company and the Note Guarantors have heretofore executed and delivered to the
Trustee an Indenture (the “Indenture”) dated as of May 30, 2008, providing for the issuance of 8.0%
Senior Notes due 2015 (the “Notes”);



WHEREAS, $275,000,000 in aggregate principal amount of Notes are outstanding as of the date of
this First Supplemental Indenture;



WHEREAS, Section 9.02 of the Indenture provides that, with the written consent of the Holders
of at least a majority in principal amount of Notes then outstanding, the Company, the Note
Guarantors and the Trustee may amend the Indenture;



WHEREAS, pursuant to an Offer to Purchase and Related Solicitation of Consents dated January
25, 2012 (the “Offer to Purchase”), the Company offered to purchase (the “Tender Offer”) all
outstanding Notes and solicited consents to the amendments to the Indenture and the Notes described
herein (the “Amendments”);



WHEREAS, Holders of a majority in principal amount of the Notes outstanding have consented to
the Amendments by tendering and not withdrawing their Notes and by delivering the related consents
pursuant to the terms of the Offer to Purchase, as evidenced by a certificate of D.F. King & Co.,
Inc. of even date hereof;



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



WHEREAS, this First 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 as
follows:



ARTICLE 1

AMENDMENT OF THE INDENTURE




1.01. Amendments to the Indenture. Effective as of the Effective Date, the Indenture
is amended as set forth herein.



(a) SECTION 1.01 of the Indenture is hereby amended to delete the following definitions in
their entirety:



	 	 	 
	Additional Assets

	 	Net Available Cash
	Asset Disposition

	 	Net Cash Proceeds
	Attributable Debt

	 	Permitted Business
	Capitalized Lease Obligations

	 	Permitted Investment
	Change of Control

	 	Permitted Liens
	Consolidated Coverage Ratio

	 	Purchase Money Indebtedness
	Consolidated Current Liabilities

	 	Rating Agency
	Consolidated Interest Expense

	 	Refinancing Indebtedness
	Consolidated Net Income

	 	Sale/Leaseback Transaction
	Consolidated Net Tangible Assets

	 	Secured Indebtedness
	Disqualified Stock

	 	Secured Indebtedness Leverage Ratio
	EBITDA

	 	Securities Act
	Equity Offering

	 	Senior Indebtedness
	Excluded Contributions

	 	Stock Purchase Loans
	Interest Rate Agreement

	 	Subordinated Obligation
	Investment Grade Rating

	 	Temporary Cash Investments






(b) Each of the following Sections of the Indenture is hereby deleted in its entirety and
replaced in lieu thereof with the words “[Intentionally Deleted]”:



Section 4.03 Limitation on Indebtedness.



Section 4.04 Limitation on Restricted Payments.



Section 4.05 Limitation on Restrictions on Distributions from Restricted
Subsidiaries.



Section 4.06 Limitation on Sales of Assets and Capital Stock.



Section 4.07 Limitation on Transactions with Affiliates.



Section 4.08 Change of Control.



Section 4.10 Future Note Guarantors.



Section 4.13 Limitation on Liens.



Section 4.14 Limitation of Sale/Leaseback Transactions.



Section 4.15 Covenant Termination.



(c) SECTION 4.09 of the Indenture is hereby deleted in its entirety and replaced with the
following:




“SECTION 4.09 Compliance Certificate. The Company shall comply with Section 314(a)(4)
of the TIA to the extent applicable.”



(d) SECTION 5.01 of the Indenture is hereby deleted in its entirety and replaced with the
following:




“Section 5.01 When Company May Merge or Transfer Assets. (a) Neither the
Company nor any Note Guarantor will consolidate with or merge with or into, or convey,
transfer or lease all or substantially all its assets to, any Person, unless:




(i) the resulting, surviving or transferee Person (the “Successor Company”) shall be a
corporation, partnership or limited liability company organized and existing under the laws
of the United States of America, any state thereof or the District of Columbia (or in the
case of a Note Guarantor, a corporation, partnership or limited liability company organized
and existing under the laws of the jurisdiction under which such Note Guarantor was
organized) and the Successor Company (if not the Company or a Note Guarantor) shall
expressly assume, by a supplemental indenture hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of the Company or such Note
Guarantor, as the case may be, under the Securities and this Indenture;




(ii) immediately after giving effect to such transaction (and treating any Indebtedness
which becomes an obligation of the Successor Company, the Parent or any Restricted
Subsidiary as a result of such transaction as having been Incurred by the Successor Company,
the Parent or such Restricted Subsidiary at the time of such transaction), no Default shall
have occurred and be continuing; and




(iii) the Parent shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture.




The Successor Company will succeed to, and be substituted for, and may exercise every
right and power of the Company or Note Guarantor, as the case may be, under the Indenture,
but the predecessor in the case of a conveyance, transfer or lease of all or substantially
all of its assets will not be released from the obligation to pay the principal of and
interest on the Securities.




(b) Notwithstanding the foregoing, (i) any Restricted Subsidiary may consolidate with,
merge into or transfer all or part of its properties and assets to the Company or any Note
Guarantor; (ii) any Restricted Subsidiary that is not a Note Guarantor may consolidate with,
merge into or transfer all or part of its properties and assets to any other Restricted
Subsidiary that is not a Note Guarantor; and (iii) the Parent or the Company may merge with
an Affiliate incorporated solely for the purpose of reincorporating the Parent or the
Company, as the case may be, in another jurisdiction to realize tax or other benefits.”



(e) SECTION 6.01(c) of the Indenture is hereby deleted in its entirety and replaced with the
following:




“the Parent or any Restricted Subsidiary fails to comply with Section 5.01;”



(f) SECTION 6.01(d) is hereby deleted in its entirety and replaced in lieu thereof with the
words “[Intentionally Deleted]”.



(g) The penultimate paragraph in SECTION 6.01 is hereby deleted in its entirety and replaced
with the following:




“A default under clause (i) will not constitute an Event of Default until the Trustee
notifies the Company or the holders of at least 25% in principal amount of the outstanding
Securities notify the Company and the Trustee of the Default and the Company or the Note
Guarantor, as applicable, does not cure such Default within the time specified in clause (i)
hereof after receipt of such notice. Such notice must specify the Default, demand that it
be remedied and state that such notice is a “Notice of Default”.”



(h) SECTION 6.12 of the Indenture is hereby deleted in its entirety and replaced in lieu
thereof with the words “[Intentionally Deleted]”.



(i) SECTIONS 8.02(a)(iii), (vi) and (vii) of the Indenture are hereby deleted in their
entirety and replaced in lieu thereof with the words “[Intentionally Deleted]”.



(j) SECTION 9.04 of the Indenture is hereby deleted in its entirety and
replaced with the following:




“SECTION 9.04. Revocation and Effect of Consents and Waivers. (a) A consent to an
amendment or a waiver by a Holder of a Security shall bind the Holder and every subsequent
Holder of that Security or portion of the Security that evidences the same debt as the
consenting Holder’s Security, even if notation of the consent or waiver is not made on the
Security. After an amendment or waiver becomes effective, it shall bind every Holder. An
amendment or waiver becomes effective upon the (i) receipt by the Company or the Trustee of
the requisite number of consents, (ii) satisfaction of conditions to effectiveness as set
forth in this Indenture and any indenture supplemental hereto containing such amendment or
waiver and (iii) execution of such amendment or waiver (or supplemental indenture) by the
Company and the Trustee.”



(k) SECTION 10.02(b) of the Indenture is hereby deleted in its entirety and replaced with the
following:




“A Note Guarantee of any Restricted Subsidiary which is a Note Guarantor shall be
released and terminated (i) upon the sale (including by means of a merger) of all of the
Capital Stock of such Note Guarantor made in compliance with the terms of this Indenture and
(2) upon any release and termination of the Guarantee of the Indebtedness outstanding under
the Credit Agreement (other than by reason of repayment and satisfaction of all of the
Indebtedness outstanding under the Credit Agreement). At the request of the Company, the
Trustee shall execute and deliver an appropriate instrument evidencing such release (in the
form provided by the Company).”



(l) SECTION 10.06 of the Indenture is hereby deleted in its entirety and replaced in lieu
thereof with the words “[Intentionally Deleted]”.



(m) The first clause of SECTION 11.05 is hereby deleted in its entirety and replaced with the
following:




“Statements Required in Certificate or Opinion. Each certificate or opinion with
respect to compliance with a covenant or condition provided for in this Indenture shall
include:”



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 First Supplemental Indenture by the Company, the Note Guarantors and the
Trustee, the Indenture shall be supplemented in accordance herewith. This First Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore
or hereafter authenticated and delivered shall be bound hereby, and the respective rights,
limitation of rights, obligations, duties and immunities under the Indenture of the Company, the
Note Guarantors and the Trustee, and the Holders of the Notes shall thereafter be determined,
exercised and enforced thereunder, subject in all respects to such modifications and amendments,
and all the terms and conditions of this First Supplemental Indenture shall be deemed to be part of
the terms and conditions of the Indenture and the Notes theretofore issued for any and all
purposes.



2.02. Governing Law. THIS FIRST 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 Acceptance. The Trustee accepts the amendment of the Indenture effected
by this First Supplemental Indenture, but only upon the terms and conditions set forth in the
Indenture, as hereby amended, including the terms and provisions defining and limiting the
liabilities and responsibilities of the Trustee in the performance of its duties and obligations
under the Indenture, as hereby amended. Without limiting the generality of the foregoing, the
Trustee has no responsibility for the correctness of the recitals of fact herein contained which
shall be taken as the statements of the Company, and makes no representations as to the validity or
sufficiency of this First Supplemental Indenture.



2.04. Severability Clause. In case any provision of this First 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.



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



2.06. 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.



2.07. Effectiveness of First Supplemental Indenture. This First Supplemental
Indenture shall become effective upon execution hereof by all parties hereto. All of the
provisions of this First Supplemental Indenture other than Article I hereof will become operative
on, and simultaneously with, the time that this First Supplemental Indenture becomes effective.
Article I of this First Supplemental Indenture will become operative upon, and simultaneously with,
and shall have no force or effect prior to the acceptance by the Company for purchase the (the
“Acceptance Date”) of at least a majority in principal amount of Notes then outstanding pursuant to
the Tender Offer.



2.08. Termination. Prior to the Acceptance Date, the Company may terminate this First
Supplemental Indenture upon written notice to the Trustee.



2.09. Successors. All agreements of the Company and each Note Guarantor in this First
Supplemental Indenture shall bind their respective successors. All agreements of the Trustee in
this First Supplemental Indenture shall bind its successors.



2.10. Trust Indenture Act Controls. If and to the extent that any provision of this
First Supplemental Indenture limits, qualifies or conflicts with the duties imposed by, or with
another provision (an “incorporated provision”) included in the Indenture or this First
Supplemental Indenture by operation of, Sections 310 to 318 of the TIA, inclusive, such imposed
duties or incorporated provision shall control.



[signature page follows]




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




THE KANSAS CITY SOUTHERN RAILWAY COMPANY



By   /s/ Michael W. Cline



Name: Michael W. Cline

Title: VP-Finance & Treasurer




KANSAS CITY SOUTHERN



By   /s/ Michael W. Cline



Name: Michael W. Cline

Title: VP-Finance & Treasurer




GATEWAY EASTERN RAILWAY COMPANY



By   /s/ Michael W. Cline



Name: Michael W. Cline

Title: VP & Treasurer



	 	 	 
	PABTEX , INC

	By

	 	/s/ William J. Wochner
	 

	 	 






Name: William J. Wochner

Title: Vice President



	 	 	 
	SOUTHERN DEVELOPMENT COMPANY

	By

	 	/s/ William J. Wochner
	 

	 	 






Name: William J. Wochner

Title: Vice President



	 	 	 
	SOUTHERN INDUSTRIAL SERVICES, INC.

	By

	 	/s/ William J. Wochner
	 

	 	 






Name: William J. Wochner

Title: Vice President



	 	 	 
	TRANS-SERVE, INC.

	By

	 	/s/ Michael W. Cline
	 

	 	 






Name: Michael W. Cline

Title: Vice President & Treasurer



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U.S. BANK NATIONAL ASSOCIATION, as Trustee



By  /s/Michael M. Hopkins

Name: Michael M. Hopkins

Title: Vice President





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