exv10w1



 






Confidential Treatment Requested




EXECUTION COPY




AMENDMENT AND WAIVER NO. 2 TO THE CREDIT AGREEMENT




Dated as of September 30, 2005




          AMENDMENT NO. 2 TO THE CREDIT AGREEMENT (this “Amendment No. 2”) among The Kansas City
Southern Railway Company, a Missouri corporation, (the “Borrower”), Kansas City Southern, a
Delaware corporation (the “Parent”), the subsidiary guarantors listed on the signature page hereof
(the “Subsidiary Guarantors”), the Lender Parties (as hereinafter defined) party hereto, The Bank
of Nova Scotia (“BNS”), as collateral agent (the “Collateral Agent”) and BNS, as administrative
agent (the “Administrative Agent”; together with the Collateral Agent, the “Agents”).




PRELIMINARY STATEMENTS:




          (1) The Borrower, the Parent, the Subsidiary Guarantors, certain financial institutions and
other persons from time to time parties thereto (collectively, the “Lender Parties”), the Agents,
Morgan Stanley Senior Funding, Inc. (“Morgan Stanley”), as syndication agent, BNS and Morgan
Stanley, as joint lead arrangers and joint bookrunners, and Harris N.A. (as successor by merger
with Harris Trust and Savings Bank), as documentation agent, have entered into that certain Credit
Agreement dated as of March 30, 2004 (as amended by Amendment No. 1 and as otherwise amended,
restated, supplemented or otherwise modified, the “Credit Agreement”; capitalized terms used herein
but not defined shall be used herein as defined in the Credit Agreement).




          (2) The Borrower has requested that the Revolving Credit Facility be increased in an amount
equal to $25,000,000 in excess of the principal amount of the Revolving Credit Facility under the
Credit Agreement prior to the effectiveness of this Amendment No. 2.




          (3) Each Person who executes and delivers this Amendment No. 2 as an additional Revolving
Credit Lender (each, an “Additional Revolving Credit Lender”), will make a commitment on the
Amendment No. 2 Effective Date (as hereinafter defined) in an aggregate principal amount equal to
the amount set forth opposite its name on Schedule I to the Credit Agreement, as amended as of the
Amendment No. 2 Effective Date (as hereinafter defined) (the “Amended Schedule I”) (a copy of which
has been delivered to the Borrower).




          (4) The Borrower has requested that the Lenders amend the Credit Agreement (a) to effect the
changes described above and (b) to make other amendments set forth below.




KCS — Amendment No. 2



Portions of this document appearing on pages 5, 6, 8, 9, 10 and 12 and containing the symbol
* * * indicate omitted information that has been filed separately with the Securities and Exchange
Commission pursuant to a request for confidential treatment.




 









 





          (5) The Lenders and the Additional Revolving Credit Lenders (as defined in this Amendment No.
2) have agreed, subject to the terms and conditions hereinafter set forth, to amend the Credit
Agreement in certain respects as set forth below.




          NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration
(the receipt and sufficiency of which is hereby acknowledged), the parties hereto hereby agree as
follows:




          SECTION 1. Amendment of Credit Agreement. The Credit Agreement is, effective as of
the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 3
of this Amendment No. 2, hereby amended as follows:





    (a) Section 1.01 of the Credit Agreement is hereby amended as follows:




    (i) By amending and restating the definition of “Amended Schedule I” in its entirety as
follows:




    “Amended Schedule I” has the meaning specified in Amendment No. 2.”




    (ii) By amending and restating clause (a)(ii) of the definition of “Applicable Margin”
in its entirety to read as follows:




    “(ii) thereafter, a percentage per annum determined by reference to the
Leverage Ratio, as set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Eurodollar Rate	 	 	 	 
	Leverage Ratio	 	Base Rate Advances	 	 	Advances	 	 	Commitment Fee	 
	Level I
	 	 	 	 	 	 	 	 	 	 	 	 
	less than 3.25: 1.00
	 	 	0.25	%	 	 	1.25	%	 	 	0.375	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Level II
	 	 	 	 	 	 	 	 	 	 	 	 
	3.25: 1.00 or
greater,
but less than or
equal to 4.25: 1.00
	 	 	0.50	%	 	 	1.50	%	 	 	0.375	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Level III
	 	 	 	 	 	 	 	 	 	 	 	 
	greater
than 4.25: 1.00
but less than
or equal to
5.25:1.00
	 	 	0.75	%	 	 	1.75	%	 	 	0.50	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Level IV
	 	 	 	 	 	 	 	 	 	 	 	 
	greater
than 5.25: 1.00
	 	 	1.25	%	 	 	2.25	%	 	 	0.50%"	 






KCS — Amendment No. 2




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    (iii) By amending and restating clause (b) of the definition of “Applicable Margin” in
its entirety to read as follows:




“(b) in respect of the Term B1 Facility, 0.50% per annum for Base Rate
Advances and 1.50% per annum for Eurodollar Rate Advances.”




    (iv) By amending and restating the definition of “Initial Swing Line Bank” in its
entirety as follows:




““Initial Swing Line Bank” means the bank listed on the signature page to
Amendment No. 2 as the Initial Swing Line Bank.”




    (v) By amending and restating the definition of “Material Debt” in its entirety and
inserting the following definition in its place:




“Material Debt” means (i) Debt (other than the Obligations hereunder) of
the Parent or its Subsidiaries in an aggregate principal amount exceeding
$20,000,000 or (ii) obligations in respect of any Hedge Agreement of the
Parent or its Subsidiaries in an aggregate principal amount exceeding
$50,000,000. For purposes of determining Material Debt, the “principal
amount” of the obligations of Parent or any Subsidiary in respect of any
Hedging Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that Parent or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.”




    (vi) By amending and restating clause (b) of the definition of “Net Cash Proceeds” in
its entirety and inserting the following definition in its place:




“(b) with respect to the incurrence or issuance of any Debt by the Parent or
any of its Subsidiaries (other than Debt permitted pursuant to Section
5.02(b)(i), (ii), (iii) and (iv)), the excess of (i) the sum of the cash and
Cash Equivalents received in connection with such incurrence or issuance
over (ii) the underwriting discounts and commissions or other similar
payments, and other out-of-pocket costs, fees, commissions, premiums and
expenses incurred by the Parent or any of its Subsidiaries in connection
with such incurrence or issuance to the extent such amounts were not
deducted in determining the amount referred to in clause (i).”




    (vii) By appending a new clause (c) to the definition of “Net Cash Proceeds” as
follows:




    “(c) with respect to the incurrence or issuance of any Debt by the
Parent or any of its Subsidiaries pursuant to Section 5.02(b)(v), the sum of
(i) the first $100,000,000 in cash and Cash Equivalents received in
connection with such incurrence or issuance, (ii)



KCS — Amendment No. 2




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any amount of such cash and Cash Equivalents received not used to prepay the
then outstanding Revolving Credit Advances under the Revolving Credit
Facility in accordance with Section 2.06(a) and (iii) any amount of such
cash and Cash Equivalents received not used to repay that certain
$35,000,000 note owed to Grupo TMM SA de CV in connection with the
acquisition Grupo TFM SA de CV.”




    (viii) The proviso in the definition of “EBITDA” is hereby amended in its entirety as
follows:




“; provided, however, that EBITDA shall exclude (i) non-cash charges not to
exceed $26,000,000 in the aggregate for the periods ending, June 30, 2003,
September 30, 2003, December 31, 2003 and March 31, 2004, including, without
limitation, non-cash charges consisting of debt issuance costs, claims
adjustments and accounting changes, (ii) without duplication of any
applicable amounts pursuant to immediately preceding clause (i), non-cash
charges not to exceed $5,000,000 in the aggregate per annum arising from
debt issuance costs, claims adjustments and accounting changes, and (iii)
expenses incurred in connection with the Grupo TFM Acquisition in an amount
not to exceed $20,000,000.”




    (ix) The phrase “to the extent permitted pursuant to Section 5.02(m)” in clause (d)(i)
of the definition of “Excess Cash Flow” is deleted in its entirety.




    (x) By amending and restating the definition of “Prepayment Date” in its entirety and
inserting the following definition in its place:




““Prepayment Date” means with respect to any cash receipts from a
transaction described in clause (a) or (b) of the definition of “Net Cash
Proceeds”, (x) other than in the case of the incurrence or issuance of Debt
pursuant to Section 5.02(b)(v), the third Business Day, and (y) in the case
of the incurrence or issuance of Debt pursuant to Section 5.02(b)(v), the
105th day, in each case, following the date of the receipt of
such Net Cash Proceeds by the Parent or any of its Subsidiaries or, if any
cash receipts from a transaction described in clause (a) of the definition
of “Net Cash Proceeds” are not deemed to be Net Cash Proceeds pursuant to
the penultimate proviso of such clause and are not reinvested in the
business of the Borrower and its Subsidiaries within 360 days after the date
of receipt thereof, the date which is 360 days following the date of receipt
of such cash receipts.”




    (xi) By amending and restating the definition of “Revolving Credit Commitment” in its
entirety and inserting the following definition in its place:




“ Revolving Credit Commitment” means, collectively, (a) with respect to each
Revolving Credit Lender, the amount set forth opposite such



KCS — Amendment No. 2




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Lender’s name on Amended Schedule I under the caption “Total Revolving
Credit Commitment” and (b) if any such Lender has entered into one or more
Assignment and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 9.07(d), in each
case, as such Lender’s “Total Revolving Credit Commitment”, may be reduced
at or prior to such time pursuant to Section 2.05.”




    (xii) By amending and restating the definition of “Senior Secured Debt” in its entirety
as follows:




““Senior Secured Debt” means any Debt that is pari passu with the Debt under
the Loan Documents and secured on a first priority basis; provided that, all
Debt incurred to purchase newly-acquired equipment to the extent such
newly-acquired equipment is subject to a Sale and Leaseback Transaction
shall not constitute “Debt” for the purposes of this definition if such
transaction is consummated on or prior to the 105th day of the
acquisition of such newly-acquired equipment subject to such Sale and
Leaseback Transaction.”




    (xiii) By inserting the phrase * * * (except that, for purposes of (x)
Section 5.02(o) and (y) in the calculation of EBITDA (to the extent attributable to the
Borrower based on the Borrower’s pro rata share of the outstanding Equity Interests of
* * *




    (xiv) By inserting the following new definitions therein in the appropriate
alphabetical order:




“Additional Revolving Credit Commitment” means, with respect to an
Additional Revolving Credit Lender, the commitment of such Additional
Revolving Credit Lender to make Revolving Credit Advances in an amount in US
Dollars set forth next to the name of such Additional Revolving Credit
Lender on Amended Schedule I thereto under the caption “Additional Revolving
Credit Commitment”. The aggregate amount of the Additional Revolving Credit
Commitments shall be equal to $25,000,000.




“Additional Revolving Credit Lender” means a Person with an Additional
Revolving Credit Commitment to make Revolving Credit Advances to the
Borrower, it being understood that an Additional Revolving Credit Lender may
be an Original Revolving Credit Lender.



KCS — Amendment No. 2




5









 






“Amendment No. 2” means the Amendment No. 2 to the Credit Agreement, dated
as of September 30, 2005, among the Borrower, the Agents and the Lenders
party thereto.




“Amendment No. 2 Effective Date” means September 30, 2005.




“Commitment Fee” has the meaning specified in Section 2.08(a).



* * *




* * *





“Non-Consenting Lender” means, in the event that the Required Lenders have
agreed to any consent, waiver or amendment pursuant to Section 9.01 that
requires the consent of one or more Lenders in addition to the Required
Lenders, any Lender who is entitled to agree to such consent, waiver or
amendment but who does not so agree.




“Non-Core Business Subsidiary” means any single domestic Subsidiary of the
Borrower and any of such Subsidiary’s respective Subsidiaries conducting
business of a nature distinct from that of the Loan Parties.




“Original Revolving Credit Advance” means a “Revolving Credit Advance” as
defined in Section 1.01 of this Credit Agreement, as in effect prior to the
Amendment No. 2 Effective Date.




“Original Revolving Credit Lender” means a “Revolving Credit Lender” as
defined in Section 1.01 of this Credit Agreement, as in effect prior to the
Amendment No. 2 Effective Date.”




“Original Revolving Credit Commitment” means for each Original Revolving
Credit Lender executing Amendment No. 2 the outstanding principal amount of
its Original Revolving Credit Advances, immediately prior to the
effectiveness of Amendment No. 2.




    (b) Section 2.01(b) of the Credit Agreement is hereby amended by deleting “$5,000,000”
in the seventh line thereof and replacing it with “$2,000,000”.



KCS — Amendment No. 2




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    (c) Section 2.02(a) of the Credit Agreement is hereby amended by (i) deleting “11:00
A.M.” in the second line thereof and replacing it with “1:00 P.M.” and (ii) deleting “10:00
A.M.” in the fourth line thereof and replacing it with “12:00 P.M.”.




    (d) Section 2.02 of the Credit Agreement is hereby amended by adding at the end thereof
a new subsection (g) as follows:




“(g) On the Amendment No. 2 Effective Date, (i) in connection with any
Revolver Credit Borrowing on such date, the Additional Revolving Credit
Lender shall make an Advance in respect of such Revolving Credit Borrowing
(up to the maximum amount thereof) or (ii) in any other case, the Additional
Revolving Credit Lender and the Original Revolving Credit Lenders shall make
and receive payments among themselves, in a manner acceptable to the
Administrative Agent, in each case, such as to cause each Revolving Credit
Lender to hold its Pro Rata Share of all Revolving Credit Advances after
giving effect to such Revolving Credit Borrowing; it being understood that
any reallocation made pursuant to this subsection (g) of this Section 2.02
among the Revolving Credit Lenders shall be made so as to minimize the
expenses to the Borrower pursuant to Section 9.04(c) hereof in connection
with such reallocation.”




    (e) Section 2.06(a) of the Credit Agreement is hereby amended by deleting “$5,000,000”
in the eighth line thereof and replacing it with “$2,000,000”.




    (f) Section 2.08(a) of the Credit Agreement is hereby amended as follows:




“(a) Commitment Fee. The Borrower shall pay to the Administrative
Agent for the account of the Revolving Credit Lenders a commitment fee (the
“Commitment Fee”), from the Effective Date in the case of each Initial
Lender, from the Amendment No. 2 Effective Date in the case of each
Additional Revolving Credit Lender and from the effective date specified in
the Assignment and Acceptance pursuant to which it became a Lender in the
case of each other Lender until the Termination Date, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing June 30, 2004, and on the Termination Date, equal to the
Applicable Margin times the average daily Unused Revolving Credit Commitment
of such Lender; provided, however, that any Commitment Fee accrued with
respect to any of the Commitments of a Defaulting Lender during the period
prior to the time such Lender became a Defaulting Lender and unpaid at such
time shall not be payable by the Borrower so long as such Lender shall be a
Defaulting Lender except to the extent that such Commitment Fee shall
otherwise have been due and payable by the Borrower prior to such time; and
provided further that no Commitment Fee shall accrue on any of the
Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender.”



KCS — Amendment No. 2




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    (g) Section 5.01 is hereby amended by adding a new subsection (p) to the end thereof:




“(p) Maintenance of Separate Existence. * * * to (i)
maintain its funds in accounts which are separate and distinct from any
account maintained by any Loan Party or any of its Subsidiaries, (ii)
maintain its own business and financial records, (iii) act pursuant to
corporate resolutions or similar authority granted in accordance with the
* * * and with procedures required by any other organizational
document of the * * * , (iv) document and record in its financial
records each transaction between * * * on the one hand, and
any Loan Party or any of its Subsidiaries, on the other hand, in accordance
with business practices commonly employed by enterprises similar to *
* * with respect to transactions with non-Affiliates, (v) conduct its
business with third parties in the name of * * *
capitalization adequate (in the reasonable determination of the Parent) to
meet its reasonably anticipated business needs.”




    (h) Clause (i)(I) of Section 5.02(b) of the Credit Agreement is hereby renumbered as
clause (J) and a new clause (I) is inserted after clause (H) as follows:




“(I) Debt incurred to finance newly-acquired equipment in contemplation of a
Sale and Leaseback Transaction within 105 days following the incurrence
thereof pursuant to Section 5.02(h)(iii), to the extent the conditions set
forth therein are satisfied;”




    (i) The word “and” is deleted at the end of clause (iii) of Section 5.02(b) of the
Credit Agreement, the “.” is deleted at the end of clause (iv) of Section 5.02(b) of the
Credit Agreement and replaced with the word “and”, and a new clause (v) is appended to
Section 5.02(b) as follows:




“(v) Debt owed by the Parent, the Borrower, or any Subsidiary of the Parent
to * * * which Debt shall not exceed an aggregate amount
equal to * * * be unsecured and on terms and conditions
acceptable to the Administrative Agent, including, without limitation, (A)
subordination terms and (B) compliance with Section 5.02(o) hereof;”




    (j) Section 5.02(c) of the Credit Agreement is hereby amended in its entirety as
follows:




“(c) Change in Nature of Business. Make, or permit any of their
Subsidiaries (other than, with respect to the Borrower, a Non-Core Business
Subsidiary) to make, any material change in the nature of its business as
carried on at the date hereof.”



KCS — Amendment No. 2




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    (k) The word “and” is deleted at the end of clause (iv) of Section 5.02(e) of the
Credit Agreement, the “.” is deleted at the end of clause (v) of Section 5.02(e) of the
Credit Agreement and replaced with the “; and”, and a new clause (vi) is appended to Section
5.02(e) as follows:




“(vi) * * *




    (l) Clause (i) of Section 5.02(f) of the Credit Agreement is hereby amended in its
entirety as follows:




“(i) Investments by Parent, the Borrower and their Subsidiaries in Loan
Parties; provided that, with respect to the Borrower, all such Investments
in a Non-Core Business Subsidiary shall not exceed an aggregate principal
amount equal to $15,000,000 at any time outstanding, including, with respect
to any assets comprising such Investment, the fair market value thereof;”




    (m) Section 5.02(h)(i), (ii) and (iii) of the Credit Agreement are hereby amended in
their entirety as follows:




“(i) Sale and Leaseback Transactions involving locomotives, rolling stock or
other equipment with Southern Capital Corporation, LLC;




(ii) Sale and Leaseback Transactions permitted by clauses (viii) and (x) of
Section 5.02(f); and




(iii) any other Sale and Leaseback Transaction if (i) at the time of such
Sale and Leaseback Transaction no Default shall have occurred and be
continuing, (ii) the proceeds from the sale of the subject property shall be
at least equal to its fair market value on the date of such sale, and (iii)
the sum of (A) the aggregate principal amount of the outstanding Debt of
Parent and its Subsidiaries secured by Liens permitted by clause (viii) of
Section 5.02(a) and (B) the Attributable Debt in connection with all Sale
and Leaseback Transactions of Parent and its Subsidiaries permitted by this
Section 5.02(h)(iii) does not at any time exceed 10% of Consolidated Net
Worth; provided that any Sale and Leaseback Transaction permitted pursuant
to this Section 5.02(h)(iii) shall be deemed not to include any Attributable
Debt for the purposes hereof to the extent that such Sale and Leaseback
Transaction is consummated with respect to such newly-acquired equipment.”




    (n) Section 5.02(m) of the Credit Agreement is hereby deleted in its entirety and
replaced with the following:



KCS — Amendment No. 2




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“[Intentionally omitted.]”




    (o) Clause (xiii) of Section 5.02(f) is renumbered as clause (xiv) and restated as
follows:




“(xiv) Investments not expressly permitted by clauses (i) through (xiii);
provided that the aggregate amount of all such Investments shall not at any
time exceed $10,000,000.”




    (p) A new clause (xiii) is added to Section 5.02(f) as follows:




“(xiii) * * *




    (q) The following proviso is appended to Section 5.04 of the Credit Agreement:




“provided that, with respect to clause (a) and (b) of this Section 5.04, for
purposes of the calculation of the Leverage Ratio and the Interest Coverage
Ratio, respectively, all Debt incurred to purchase newly-acquired equipment
to the extent such newly-acquired equipment is subject to a Sale and
Leaseback Transaction shall not constitute “Debt” for the purposes of this
Section 5.04 if such transaction is consummated on or prior to the
105th day of the acquisition of such newly-acquired equipment
subject to such Sale and Leaseback Transaction.”




    (r) Section 9.15 is appended to Article IX of the Credit Agreement as follows:




“Section 9.15 Non-Consenting Lenders. If at any time, any Lender
becomes a Non-Consenting Lender, then the Borrower may, at its sole cost and
expense, on prior written notice to the Administrative Agent and such
Lender, replace such Lender by causing such Lender to (and such Lender shall
be obligated to) assign pursuant to Section 9.07 all of its rights and
obligations under this Agreement to one or more Eligible Assignees; provided
that neither the Administrative Agent nor any Lender shall have any
obligation to the Borrower to find a replacement Lender or other such
Person; provided, further, that such Non-Consenting Lender shall be entitled
to receive the full outstanding principal amount of Advances so assigned,
together with accrued interest and fees payable in respect of such Advances
as of the date of such assignment.”



          SECTION 2. Conditions to Effectiveness. (a) Except with respect to Section 1(a)(ii)
and Section 1(a)(iii) of this Amendment No. 2 with respect to which subsections (b) and (c) below,
respectively, shall apply, this Amendment No. 2 and the amendments contained herein shall become
effective as of the date hereof (the “Amendment No. 2 Effective




KCS — Amendment No. 2




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Date”) when each of the conditions set forth in this Section 2 to this Amendment No. 2 shall have been
fulfilled to the satisfaction of the Administrative Agent:





    (i) Execution of Counterparts. The Administrative Agent shall have received
counterparts of this Amendment No. 2, duly executed and delivered on behalf of each of the
(a) Loan Parties, (b) the Required Lenders, and (c) one or more Additional Revolving Credit
Lenders providing Additional Revolving Credit Advances in an amount equal to $25,000,000 or
as to any of the foregoing parties, advice reasonably satisfactory to the Administrative
Agent that each of the foregoing parties has executed a counterpart of this Amendment No. 2.




    (ii) Payment of Fees and Expenses. The Borrower shall have paid all reasonable
expenses (including the reasonable fees and expenses of Shearman & Sterling LLP) incurred in
connection with the preparation, negotiation and execution of this Amendment No. 2 and other
matters relating to the Credit Agreement from and after the last invoice to the extent
invoiced.




    (iii) Evidence of Debt. Each Additional Revolving Credit Lender shall have
received, if requested, one or more Notes payable to the order of such Lender duly executed
by the Borrower in substantially the form of Exhibit A-1 to the Credit Agreement, evidencing
the Revolving Credit Commitment of such Lender.




    (iv) Interest, Etc. The Borrower shall have paid to all the Original Revolving
Credit Lenders all accrued and unpaid interest on the Original Revolving Credit Advances to
the Amendment No. 2 Effective Date, plus any loss or expense pursuant to Section 9.04(c) of
the Credit Agreement.




    (v) Certificates. The Administrative Agent shall have received (i) a
certificate of the Secretary or an Assistant Secretary of each of the Loan Parties
certifying (A) the names and true signatures of the officers of each of the Loan Parties
authorized to sign this Amendment No. 2 and the other documents to be delivered hereunder
and (B) the resolutions of the Board of Directors of the Loan Parties evidencing approval
for this Amendment No. 2 and (ii) a certificate of an officer of each of the Loan Parties
certifying (A) that no authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body, or any third party to any
agreements and instruments is required for the due execution, delivery or performance by
each of the Loan Parties of this Amendment No. 2, (B) the representations and warranties
contained in Section 5 of this Amendment No. 2 are true and correct and (C) no event has
occurred and is continuing that constitutes a Default.




    (vi) Additional Collateral Documents. All necessary modifications or
confirmations to the Collateral Documents in effect on the Amendment No. 2 Effective Date
shall have been duly executed and delivered so as to ensure the continued effectiveness of
the security interests created thereby, as reasonably determined by the Administrative Agent
and its counsel, and the Administrative Agent shall have received evidence that all such
other action (including, without limitation, (A) title searches with



KCS — Amendment No. 2




11









 






respect to any real property of any Loan Party that is subject to a Mortgage and
payment of all expenses incurred in connection therewith and (B) payment of all recording
fees, if any, in connection with the transactions contemplated by this Amendment No. 2) as
shall be necessary or desirable to record, perfect or protect the security interests of the
Secured Parties shall have been taken (it being understood that, with respect to any such
action which has not been taken prior to the Amendment No. 2 Effective Date, the Borrower
may, in the reasonable discretion of the Administrative Agent, be granted an additional
period to take such action not to exceed thirty (30) days (which may be extended in the sole
discretion of the Administrative Agent) after the Amendment No. 2 Effective Date).




    (vii) Legal Details, Etc. All documents executed or submitted pursuant hereto
shall be reasonably satisfactory in form and substance to the Administrative Agent and
Shearman & Sterling LLP as counsel. The Administrative Agent and its counsel shall have
received all information and such counterpart originals or such certified or other copies or
such materials as the Administrative Agent or its counsel may reasonably request, and all
legal matters incident to the transactions contemplated by this Amendment No. 2 shall be
reasonably satisfactory to the Administrative Agent and its counsel.




    (viii) No Default. No Default shall have occurred and be continuing, or would
occur as a result of the transactions contemplated by this Agreement.




    (b) Section 1(a)(ii) hereof shall become effective as of the Amendment No. 2 Effective
Date when, in addition to the fulfillment to the satisfaction of the Administrative Agent of
each of the conditions set forth in Section 2(a) hereof, the Revolving Credit Lenders shall
consent thereto.




    (c) Section 1(a)(iii) hereof shall become effective as of the Amendment No. 2 Effective
Date when, in addition to the fulfillment to the satisfaction of the Administrative Agent of
each of the conditions set forth in Section 2(a) hereof, the Term B1 Lenders shall consent
thereto.



          SECTION 3. * * * On and after the Amendment No. 2 Effective Date, the Required Lenders consent to,
and thereby instruct the Collateral Agent to, execute and deliver, at the Grantor’s expense, such
documents as such Grantor shall reasonably request * * *




          SECTION 4. Recalculation of Pro Rata Share; Participations in Letters of Credit. On
the Amendment No. 2 Effective Date and after giving effect to the Additional Revolving Credit
Commitments of each Additional Revolving Credit Lender, the Administrative Agent shall recalculate
the Pro Rata Share of each Revolving Credit Lender. Pursuant to Section 2.03(c) of the Credit
Agreement, each Additional Revolving Credit Lender shall be deemed, without further action by any
party hereto or to the Credit Agreement, to have purchased from the Issuing Bank, a participation in each Letter of Credit outstanding on the
Amendment No. 2 Effective Date in an amount for each Additional Revolving Credit Lender




KCS — Amendment No. 2




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equal to
such Lender’s Pro Rata Share of the Available Amount of such Letter(s) of Credit, effective on the
Amendment No. 2 Effective Date.




          SECTION 5. Confirmation of Representations and Warranties. Each of the Loan Parties
hereby represents and warrants, on and as of the date hereof, that the representations and
warranties contained in the Credit Agreement are correct and true in all material respects on and
as of the date hereof, before and after giving effect to this Amendment No. 2, as though made on
and as of the date hereof, other than any such representations or warranties that, by their terms,
refer to a specific date.




          SECTION 6. Affirmation of Subsidiary Guarantors. Each Subsidiary Guarantor hereby
consents to the amendments to the Credit Agreement effected hereby, and hereby confirms and agrees
that, notwithstanding the effectiveness of this Amendment No. 2, the obligations of such Subsidiary
Guarantor contained in Article VIII of the Credit Agreement, as amended hereby, or in any other
Loan Documents to which it is a party are, and shall remain, in full force and effect and are
hereby ratified and confirmed in all respects, except that, on and after the effectiveness of this
Amendment No. 2, each reference in Article VIII of the Credit Agreement and in each of the other
Loan Documents to “the Agreement”, “thereunder”, “thereof” or words of like import shall mean and
be a reference to the Credit Agreement, as modified by this Amendment No. 2. Without limiting the
generality of the foregoing, the Collateral Documents to which such Subsidiary Guarantor is a party
and all of the Collateral described therein do, and shall continue to secure, payment of all of the
Secured Obligations (in each case, as defined therein).




          SECTION 7. Additional Revolving Credit Advances. Upon the Amendment No. 2 Effective
Date, the Additional Revolving Credit Advances shall have the same terms, rights and obligations as
the Original Revolving Credit Advances as set forth in the Loan Documents.




          SECTION 8. Reference to and Effect on the Loan Documents. (a) On and after the
effectiveness of this Amendment No. 2, each reference in the Credit Agreement to “hereunder”,
“hereof” or words of like import referring to the Credit Agreement, and each reference in the other
transaction documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as
modified by this Amendment No. 2.





    (b) The Credit Agreement, the Notes and each of the other Loan Documents, as
specifically amended by this Amendment No. 2, are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Collateral Documents and all of the Collateral described
therein do and shall continue to secure the payment of all Obligations of the Loan Parties
under the Loan Documents, in each case as amended by this Amendment No. 2.



KCS — Amendment No. 2




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    (c) The execution, delivery and effectiveness of this Amendment No. 2 shall not, except
as expressly provided herein, operate as a waiver of any right, power or remedy of any
Lender or any Agent under any of the Loan Documents, nor constitute a waiver of any
provision of any of the Loan Documents.



          SECTION 9. Execution in Counterparts. This Amendment No. 2 may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute but
one and the same agreement. Delivery of an executed counterpart of a signature page to this
Amendment No. 2 by telecopier or electronic mail in “Portable Document Format” (PDF) shall be
effective as delivery of an original executed counterpart of this Amendment No. 2.




          SECTION 10. Governing Law. This Amendment No. 2 shall be governed by, and construed
in accordance with, the laws of the State of New York, and shall be subject to the jurisdictional
and service provisions of the Credit Agreement, as if this were a part of the Credit Agreement.




          SECTION 11. Entire Agreement; Modification. This Amendment No. 2 constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof, there being no
other agreements or understandings, oral, written or otherwise, respecting such subject matter, any
such agreement or understanding being superseded hereby, shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns, and may not be amended,
extended or otherwise modified, except in a writing executed in whole or in counterparts by each
party hereto.




[Signatures follow.]




KCS — Amendment No. 2




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          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.




	 	 	 	 	 
	 	THE KANSAS CITY SOUTHERN RAILWAY COMPANY

 	 
	 	By:  	/s/ Paul J. Weyandt
 	 
	 	 	Title: Senior Vice President-Finance & 	 
	 	 	Treasurer 	 
	 



	 	 	 	 	 
	 	KANSAS CITY SOUTHERN

 	 
	 	By:  	/s/ Paul J. Weyandt
 	 
	 	 	Title:  Senior Vice President-Finance & 	 
	 	 	Treasurer 	 
	 



	 	 	 	 	 
	 	SOUTHERN INDUSTRIAL SERVICES, INC.

 	 
	 	By:  	/s/  Ronald G. Russ
 	 
	 	 	Title:  Vice President & Treasurer 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	TRANS-SERVE, INC.

 	 
	 	By:  	/s/ Ronald G. Russ
 	 
	 	 	Title:  Vice President & Treasurer 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	VEALS, INC.

 	 
	 	By:  	/s/ Ronald G. Russ
 	 
	 	 	Title:  Vice President & Treasurer 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	SIS BULK HOLDING, INC.

 	 
	 	By:  	/s/ Ronald G. Russ
 	 
	 	 	Title:  Vice President & Treasurer 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	PABTEX GP, LLC

 	 
	 	By:  	/s/ Paul J. Weyandt
 	 
	 	 	Title:  Authorized Representative 	 
	 	 	 	 
	 



KCS — Amendment No. 2





15









 





	 	 	 	 	 
	 	PABTEX, L.P.

 	 
	 	By:  	/s/ Paul J. Weyandt
 	 
	 	 	Title:  Authorized Representative 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	GATEWAY EASTERN RAILROAD COMPANY

 	 
	 	By:  	/s/ Paul J. Weyandt
 	 
	 	 	Title:  Vice President & Treasurer 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	SCC HOLDINGS, LLC

 	 
	 	By:  	/s/ Paul J. Weyandt
 	 
	 	 	Title:  Authorized Representative 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	SOUTHERN DEVELOPMENT COMPANY

 	 
	 	By:  	/s/ Ronald G. Russ
 	 
	 	 	Title:  Southern Development Company 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	THE KANSAS CITY NORTHERN

RAILWAY COMPANY

 	 
	 	By:  	/s/ Ronald G. Russ
 	 
	 	 	Title:  Vice President & Chief Financial     	 
	 	 	Officer 	 
	 



KCS — Amendment No. 2





16









 





	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA,

as Administrative Agent

 	 
	 	By:  	/s/ N. Bell
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA,

as Collateral Agent

 	 
	 	By:  	/s/ N. Bell
 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA

as Swing Line Bank

 	 
	 	By:  	/s/ N. Bell
 	 
	 	 	Title: 	 
	 	 	 	 
	 



KCS — Amendment No. 2





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