Exhibit 10.31
SUPPLEMENT NO. 1 dated as of January 29, 2001, to the
Security Agreement dated as of January 11, 2000, among THE
KANSAS CITY SOUTHERN INDUSTRIES, INC., a Delaware corporation
("Holdings"), THE KANSAS CITY SOUTHERN RAILWAY COMPANY, INC.,
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a Missouri corporation (the "Borrower"), each other Subsidiary
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of Holdings listed on Schedule I thereto or becoming a party
thereto as provided in Section 7.15 thereof (collectively, the
"Subsidiary Grantors"; Holdings, the Borrower and the
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Subsidiary Grantors being referred to collectively as the
"Grantors") and THE CHASE MANHATTAN BANK, ("Chase"), as
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collateral agent (in such capacity, the "Collateral Agent"),
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for the Secured Parties (as defined in the 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.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Security Agreement and the
Credit Agreement.
C. The Grantors have entered into the Security Agreement in order to induce
the Lenders to make Loans and the Issuing Bank to issue Letters of Credit.
Section 7.15 of the Security Agreement provides that additional Subsidiaries may
become Grantors under the Security Agreement by execution and delivery of an
instrument in the form of this Supplement. Each of the undersigned Subsidiaries
(each a "New Grantor" and collectively, the "New Grantors") is executing this
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Supplement in accordance with the requirements of the Credit Agreement to become
a Grantor under the Security 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 Grantors agree as follows:
SECTION 1. In accordance with Section 7.15 of the Security Agreement, each
New Grantor by its signature below becomes a Grantor under the Security
Agreement with the same force and effect as if originally named therein as a
Grantor and each New Grantor hereby (a) agrees to all the terms and provisions
of the Security Agreement applicable to it as a Grantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a
Grantor thereunder are true and correct on and as of the date hereof. In
furtherance of the foregoing, each New Grantor, as security for the payment and
performance in full of the Obligations (as defined in the Credit Agreement),
does hereby create and grant to the Collateral Agent, its successors and
assigns, for the benefit of the Secured Parties, their successors and assigns, a
security interest in and lien on all of such New Grantor's right, title and
interest in and to the Collateral (as defined in the Security Agreement) of such
New Grantor. Each reference to
a "Grantor" in the Security Agreement shall be deemed to include the New
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Grantors. The Security Agreement is hereby incorporated herein by reference.
SECTION 2. Each New Grantor 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 Grantors 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. Each New Grantor hereby represents and warrants that (a) set
forth on Schedule I attached hereto is a true and correct schedule of the
location of any and all Collateral of such New Grantor and (b) set forth under
its signature hereto, is the true and correct location of the chief executive
office of such New Grantor.
SECTION 5. Except as expressly supplemented hereby, the Security Agreement
shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Security Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). 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 8. All communications and notices hereunder shall be in writing and
given as provided in Section 7.01 of the Security Agreement. All communications
and notices hereunder to the New Grantors shall be given to them in care of the
Borrower.
SECTION 9. The New Grantors 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.
IN WITNESS WHEREOF, the New Grantors and the Collateral Agent have duly
executed this Supplement to the Security 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 X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: V.P.
SCHEDULE I
to Supplement No.1 to the
Security Agreement
LOCATION OF COLLATERAL
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Description Location
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None*
*For a description of the Equity Interests, see Schedule II to Supplement No. 1
to the Pledge Agreement
