AMENDMENT NO. 3 TO THE CREDIT AGREEMENT
AMENDMENT NO. 3 TO THE CREDIT AGREEMENT
Dated as of November 4, 2005
AMENDMENT NO. 3 TO THE CREDIT AGREEMENT (this “Amendment No. 3”) 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,
Xxxxxx Xxxxxxx Senior Funding, Inc. (“Xxxxxx Xxxxxxx”), as syndication agent, BNS and Xxxxxx
Xxxxxxx, as joint lead arrangers and joint bookrunners, and Xxxxxx X.X. (as successor by merger
with Xxxxxx 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 Amendment No. 2, 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 Lenders agree to amend the Credit Agreement as set
forth herein.
(3) The Lenders 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(i) . Subject to Amendment No. 3
Effectiveness (as hereinafter defined), the proviso to the definition of “EBITDA” contained
in Section 1.01 of the Credit Agreement is hereby amended, effective as of September 30,
2005, by (a) deleting the word “and” at the end of clause two thereof, (b) deleting the
period at the end of clause (iii) thereof and (c) adding a new clause (iv) to the end
thereof to read as follows:
“and (iv) non-cash charges not to exceed $35,700,000 in the aggregate for
the fiscal quarter ending September 30, 2005 with respect to an increase in
claims reserves.”
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SECTION 2. Conditions to Effectiveness. This Amendment No. 3 and the amendment
contained herein shall become effective (“Amendment No. 3 Effectiveness”) as of September 30, 2005
when each of the conditions set forth below 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. 3, duly executed and delivered on behalf of each of the
(a) Loan Parties 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. 3 and other
matters relating to the Credit 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 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. 3, 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 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. 3, 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. 3, 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. 3.
SECTION 5. Reference to and Effect on the Loan Documents. (a) On
and after the effectiveness of this Amendment No. 3, 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. 3.
(b) The Credit Agreement, the Notes and each of the other Loan Documents, as specifically
amended by this Amendment No. 3, 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. 3 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 6. Execution in Counterparts. This Amendment No. 3 may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
KCS — Amendment No. 3
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. 3 by telecopier or electronic mail in “Portable Document Format” (PDF) shall be
effective as delivery of an original executed counterpart of this Amendment No. 3.
SECTION 7. Governing Law. This Amendment No. 3 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 8. Entire Agreement; Modification. This Amendment No. 3 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 Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
| THE KANSAS CITY SOUTHERN RAILWAY COMPANY |
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| By | /s/ Xxx X. Xxxxxxx | |||
| Title: | Associate General Counsel & Corporate Secretary | |||
| KANSAS CITY SOUTHERN |
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| By | /s/ Xxx X. Xxxxxxx | |||
| Title: | Associate General Counsel & Corporate Secretary | |||
| SOUTHERN INDUSTRIAL SERVICES, INC. |
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| By | /s/ Xxxxxx X. Xxxx | |||
| Title: | Vice President & Treasurer | |||
| TRANS-SERVE, INC. |
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| By | /s/ Xxxxxx X. Xxxx | |||
| Title: | Vice President & Treasurer | |||
| XXXXX, INC. |
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| By | /s/ Xxxxxx X. Xxxx | |||
| Title: | Vice President & Treasurer | |||
| SIS BULK HOLDING, INC. |
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| By | /s/ Xxxxxx X. Xxxx | |||
| Title: | Vice President & Treasurer | |||
| PABTEX GP, LLC |
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| By | /s/ Xxx X. Xxxxxxx | |||
| Title: | Authorized Representative | |||
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| PABTEX, L.P. |
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| By | /s/ Xxx X. Xxxxxxx | |||
| Title: | Authorized Representative | |||
| GATEWAY EASTERN RAILROAD COMPANY |
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| By | /s/ Xxx X. Xxxxxxx | |||
| Title: | Vice President & Secretary | |||
| SCC HOLDINGS, LLC |
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| By | /s/ Xxx X. Xxxxxxx | |||
| Title: | Authorized Representative | |||
| SOUTHERN DEVELOPMENT COMPANY |
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| By | /s/ Xxxxxx X. Xxxx | |||
| Title: | Vice President & Treasurer | |||
| THE KANSAS CITY NORTHERN RAILWAY COMPANY |
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| By | /s/ Xxxxxx X. Xxxx | |||
| Title: | Vice President & Chief Financial Officer | |||
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| XXX XXXX XX XXXX XXXXXX, as Administrative Agent |
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| By | /s/ X. Xxxxxx | |||
| Title: | Assistant Agent | |||
KCS — Amendment No. 3
