Exhibit 10.32
SUPPLEMENT NO. 1 dated as of January 29, 2001, to the
Indemnity, Subrogation and Contribution Agreement dated as
January 11, 2000, among KANSAS CITY SOUTHERN INDUSTRIES, INC., a
Delaware corporation ("Holdings"), THE KANSAS CITY SOUTHERN
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RAILWAY COMPANY, a Missouri Corporation (the "Borrower"), each
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Subsidiary of Holdings listed on Schedule I thereto or becoming a
party thereto as provided in Section 12 thereof (each
individually, a "Subsidiary Guarantor" and, collectively,
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together with Holdings and the Borrower, the "Guarantors") and
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THE CHASE MANHATTAN BANK ("Chase"), as collateral agent (the
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"Collateral Agent") for the Secured Parties (as defined in the
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Credit Agreement referred to below).
A. Reference is made to (a) the Credit Agreement dated as of January 11,
2000 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Holdings, the Borrower, the lenders from time to time
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party thereto (the "Lenders"), and Chase, as administrative agent (in such
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capacity, the "Administrative Agent"), collateral agent (in such capacity, the
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"Collateral Agent") and issuing bank (in such capacity, the "Issuing Bank"), and
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(b) the Guarantee Agreement and the other Loan Documents referred to in the
Credit Agreement. The rules of construction set forth in Section 1.03 of the
Credit Agreement shall apply equally to this Agreement.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Indemnity, Subrogation and
Contribution Agreement and the Credit Agreement.
C. Holdings and the Subsidiary Guarantors have entered into the Indemnity,
Subrogation and Contribution Agreement in order to induce the Lenders to make
Loans and the Issuing Bank to issue Letters of Credit. Certain additional
Subsidiaries may be required from time to time, under the terms of the Credit
Agreement, to enter into the Guarantee Agreement as a Guarantor upon becoming a
Subsidiary Loan Party. Section 12 of the Indemnity, Subrogation and
Contribution Agreement provides that additional Subsidiaries may become
Guarantors under the Indemnity, Subrogation and Contribution Agreement by
execution and delivery of an instrument in the form of this Supplement. Each of
the undersigned Subsidiaries (each a "New Guarantor" and collectively, the "New
Guarantors") is executing this Supplement in accordance with the requirements of
the Credit Agreement to become a Guarantor under the Indemnity, Subrogation and
Contribution Agreement in order to induce the Lenders to make additional Loans
and the Issuing Bank to issue additional Letters of Credit and as consideration
for Loans previously made and Letters of Credit previously issued.
Accordingly, the Collateral Agent and the New Guarantors agree as follows:
SECTION 1. In accordance with Section 12 of the Indemnity, Subrogation and
Contribution Agreement, each New Guarantor by its signature below becomes a
Guarantor under the Indemnity, Subrogation and Contribution Agreement with the
same force and effect as if originally named therein as a Guarantor and each New
Guarantor hereby agrees to all the terms and provisions of the Indemnity,
Subrogation and Contribution Agreement applicable to it as a Guarantor
thereunder. Each reference to a "Guarantor" in the Indemnity, Subrogation and
Contribution Agreement shall be deemed to include the New Guarantors. The
Indemnity, Subrogation and Contribution Agreement is hereby incorporated herein
by reference.
SECTION 2. Each New Guarantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Guarantors and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Indemnity, Subrogation and Contribution Agreement shall not in
any way be affected or impaired. The parties hereto shall endeavor in good-
faith negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 7 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantors shall be given to them at the address set forth under their
signatures.
SECTION 8. The New Guarantors agree to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the New Guarantors and the Collateral Agent have duly
executed this Supplement to the Indemnity, Subrogation and Contribution
Agreement as of the day and year first above written.
PABTEX GP, LLC
By: SOUTHERN INDUSTRIAL SERVICES,
INC., its sole member
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President and Treasurer
Address: 000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
SIS BULK HOLDING, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President and Treasurer
Address: 000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
THE CHASE MANHATTAN BANK, as
Collateral Agent,
By /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President
Schedule I to Supplement No. 1
to the Indemnity, Subrogation and
Contribution Agreement
GUARANTORS
Name Address
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Caymex Transportation, Inc. 000 X. 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Gateway Eastern Railway Company 000 X. 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Gateway Western Railway Company 000 X. 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
PABTEX, L.P. (formerly known as 000 X. 00xx Xxxxxx
Global Terminaling Services, Inc.) Xxxxxx Xxxx, XX 00000
KCS Transportation Company 000 X. 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Kansas City Southern Industries, Inc.* 000 X. 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Mid-South Microwave, Inc. 000 X. 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Xxxx-Xxxxxx Corporation 000 X. 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
SCC Holdings, Inc. 000 X. 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Southern Development Company 000 X. 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Southern Industrial Services, Inc. 000 X. 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Trans-Serve, Inc. 000 X. 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Xxxxx, Inc. 000 X. 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
SIS Bulk Holding, Inc. 000 X. 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
PABTEX GP, LLC 000 X. 00xx Xxxxxx
Xxxxxx Xxxx, XX 00000
*Kansas City Southern Lines, Inc. was merged into Kansas City Southern
Industries, Inc. effective as of December 31, 2000.
