AMENDMENT NO. 1 TO THE SECURITY AGREEMENT
EXHIBIT 10.15.2
AMENDMENT NO. 1 TO THE SECURITY AGREEMENT
Dated as of November 29, 2006
AMENDMENT NO. 1 TO THE SECURITY AGREEMENT (this “Amendment No. 1”) among The Kansas City
Southern Railway Company, a Missouri corporation, (the “Borrower”), Kansas City Southern, a
Delaware corporation (the “Parent”), the subsidiary grantors listed on the signature page hereof
(together with the Borrower and the Parent, the “Grantors”), The Bank of Nova Scotia (“BNS”), as
collateral agent and administrative agent (the “Collateral Agent”) and the Lender Parties. Terms
not otherwise defined in this Amendment No. 1 shall have the meaning specified in the Restatement
(as defined below).
PRELIMINARY STATEMENTS:
(1) The Grantors, the Lender Parties, the Collateral Agent, Xxxxxx Xxxxxxx Senior Funding,
Inc. and Xxxxxx X.X., as Co-Syndication Agents, LaSalle Bank National Association and Bank of
Tokyo-Mitsubishi UFJ Trust Company, as Co-Documentation Agents and Scotia Capital, as Lead Arranger
and Bookrunner, entered into that certain Amended and Restated Credit Agreement dated as of April
28, 2006 (the “Restatement”), which amended and restated that certain $250,000,000 credit agreement
dated March 30, 2004 (the “Existing Credit Facility”).
(2) The Borrower, the Parent and certain of their subsidiaries previously entered into that
certain Security Agreement dated as of March 30, 2004 (the “Security Agreement”), wherein a
security interest was granted in the Collateral (as defined therein) to the Collateral Agent for
the ratable benefit of the Secured Parties (as defined therein).
(3) Pursuant to the terms of the Restatement, the security interest granted under the Security
Agreement continued to be effective under the Restatement.
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 Security Agreement. Subject to Amendment No. 1
Effectiveness (as hereinafter defined), Section 24(a) of the Security Agreement is hereby
amended in its entirety, effective as of November 14, 2006, to read as follows:
“(a) Upon any sale, lease, transfer or other disposition of any item of
Collateral of any Grantor in accordance with the terms of the Loan Documents
(other than sales of Inventory in the ordinary course of business), the
Collateral Agent will, at such Grantor’s expense, execute and deliver to
such Grantor such documents as such Grantor shall reasonably request to
evidence the release of such item of Collateral from the assignment and
security interest granted hereby; provided, however, that (i) at the time of
such request and such release no Default shall have
occurred and be continuing, (ii) except in the case of asset dispositions
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pursuant to Section 5.02(e)(i) of the Credit Agreement with a fair market
value of less than $250,000 (a “Permitted 5.02(e)(i) Sale”), such Grantor
shall have delivered to the Collateral Agent, at least ten Business Days
prior to the date of the proposed release, a written request for release
describing the item of Collateral and the terms of the sale, lease, transfer
or other disposition in reasonable detail, including, without limitation,
the price thereof and any expenses in connection therewith, together with a
form of release for execution by the Collateral Agent and a certificate of
such Grantor to the effect that the transaction is in compliance with the
Loan Documents and as to such other matters as the Collateral Agent may
request, (iii) in the case of any assets sold in a Permitted 5.02(e)(i)
Sale, the Collateral Agent’s security interest in such assets shall be
automatically released and terminated without further action on the part of
any Person and the Collateral Agent hereby authorizes the relevant Grantor
and any Person designated by such Grantor, to prepare and file UCC partial
termination statements regarding such assets upon notice to the Collateral
Agent, together with a copy thereof, and (iv) the proceeds of any such sale,
lease, transfer or other disposition required to be applied, or any payment
to be made in connection therewith, in accordance with Section 2.06 of the
Credit Agreement shall, to the extent so required, be paid or made to, or in
accordance with the instructions of, the Collateral Agent when and as
required under Section 2.06 of the Credit Agreement.”
SECTION 2. Conditions to Effectiveness. This Amendment No. 1 and the amendment
contained herein shall become effective (“Amendment No. 1 Effectiveness”) as of November 13, 2006
when each of the conditions set forth below shall have been fulfilled to the satisfaction of the
Collateral Agent:
(i) Execution of Counterparts. The Collateral Agent shall have received
counterparts of this Amendment No. 1, duly executed and delivered on behalf of each of the
(a) Grantors and (b) the Required Lenders.
(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. 1 and other
matters relating to the Security Agreement from and after the last invoice to the extent
invoiced.
(iii) No Default. No Default shall have occurred and be continuing, or would
occur as a result of the transactions contemplated by this Agreement.
SECTION 3. Confirmation of Representations and Warranties. Each of the Grantors
hereby represents and warrants, on and as of the date hereof, that the representations and
warranties contained in the Security 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. 1, 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 4. Affirmation of Grantors. Each of the Grantors hereby consents to the
amendment to the Security Agreement effected hereby, and hereby confirms and agrees that,
notwithstanding the effectiveness of this Amendment No. 1, the obligations of such Grantor
contained in
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the Security Agreement, as amended hereby, or in any other Loan Documents (as defined
in the Restatement) 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. 1, each reference in the Loan Documents to “the Security Agreement”, “thereunder”,
“thereof” or words of like import shall mean and be a reference to the Security Agreement, as
modified by this Amendment No. 1.
SECTION 5. Reference to and Effect on the Loan Documents. (a) On and after
the effectiveness of this Amendment No. 1, each reference in the Loan Documents to “hereunder”,
“hereof” or words of like import referring to the Security Agreement, and each reference in the
other transaction documents to the “Security Agreement”, “thereunder”, “thereof” or words of like
import referring to the Security Agreement, shall mean and be a reference to the Security Agreement
as modified by this Amendment No. 1.
(b) The Loan Documents as amended by this Amendment No. 1, are and shall continue to be in
full force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment No. 1 shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of any Lender Party or
the Collateral Agent under the Loan Documents, nor constitute a waiver of any provision of any of
the Loan Documents.
SECTION 6. Execution in Counterparts. This Amendment No. 1 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. 1 by telecopier or electronic mail in “Portable Document Format” (PDF) shall be
effective as delivery of an original executed counterpart of this Amendment No. 1.
SECTION 7. Governing Law. This Amendment No. 1 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 Security Agreement, as if this were a part of the Security Agreement.
SECTION 8. Entire Agreement; Modification. This Amendment No. 1 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]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be executed by
their respective officers thereunto duly authorized, as of the date first above written.
THE KANSAS CITY SOUTHERN RAILWAY COMPANY | ||||||
As Grantor | ||||||
By | /s/ Xxxx X. Xxxxxxx | |||||
KANSAS CITY SOUTHERN | ||||||
as Grantor | ||||||
By | /s/ Xxxx X. Xxxxxxx | |||||
GATEWAY EASTERN RAILWAY COMPANY | ||||||
as Grantor | ||||||
By | Xxxx X. Xxxxxxx | |||||
SOUTHERN DEVELOPMENT COMPANY | ||||||
as Grantor | ||||||
By | /s/ Xxxxxxx X. Xxxxxxx | |||||
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THE KANSAS CITY NORTHERN RAILWAY COMPANY | ||||||
as Grantor | ||||||
By | /s/ Xxxxxxx X. Xxxxxxx | |||||
TRANS-SERVE, INC. | ||||||
as Grantor | ||||||
By | /s/ Xxxxx X. Xxxxxx | |||||
PABTEX, L.P. | ||||||
as Grantor | ||||||
By: | Pabtex G.P., LLC, as its General Partner | |||||
By: | Southern Industrial Services, as its sole member | |||||
By | /s/ Xxxxxxx X. Xxxxxxx | |||||
PABTEX G.P., LLC | ||||||
as Grantor | ||||||
By: | Southern Industrial Services, as its sole member | |||||
By | /s/ Xxxxxxx X. Xxxxxxx | |||||
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SIS BULK HOLDING, INC. | ||||||
as Grantor | ||||||
By | /s/ Xxxxxxx X. Xxxxxxx | |||||
SOUTHERN INDUSTRIAL SERVICES, INC. | ||||||
as Grantor | ||||||
By | /s/ Xxxxxxx X. Xxxxxxx | |||||
XXXXX, INC. | ||||||
as Grantor | ||||||
By | /s/ Xxxxxxx X. Xxxxxxx | |||||
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