SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 22, 2004
KANSAS CITY SOUTHERN
(Exact name of company as specified in its charter)
DELAWARE 1-4717 44-0663509
(State or other (Commission file numb (IRS Employer
jurisdiction of Identification
incorporation) Number)
427 West 12th Street, Kansas City, Missouri 64105
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(816) 983 - 1303
Not Applicable
(Former name or former address if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[x] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
On December 22, 2004, Kansas City Southern ("KCS") or "the Company" announced
that the Company, its wholly owned subsidiary, The Kansas City Southern Railway
Company ("KCSR"), and certain of its subsidiaries had entered into an amendment
and waiver of its existing credit agreement. For further information, see the
press release dated December 22, 2004 attached hereto as Exhibit 99.1.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation
Under an Off-Balance Sheet Arrangement of a Registrant
The credit agreement was amended to, among other things, increase the term loan
by $100,000,000 to a total amount outstanding of $249,250,000 and decrease the
borrowing spread by 25 basis point to 175 basis points over LIBOR. In addition,
a waiver was granted that would allow KCSR to make an additional $55 million of
capital expenditures during 2004 and 2005. The funds borrowed under the amended
credit facility were deposited into the Closing Escrow established under the
terms of the December 15, 2004 Amended and Restated Acquisition Agreement. For
further information, see the press release dated December 22, 2004 attached
hereto as Exhibit 99.1.
In connection with the proposed acquisition pursuant to the Amended and
Restated Acquisition Agreement, KCS will file relevant materials with the
Securities and Exchange Commission ("SEC"), including an amended proxy statement
soliciting stockholder approval of certain actions in connection with the
transaction. Stockholders are urged to read the amended proxy statement, as well
as any amendments and supplements to the proxy statement (if and when they
become available) and any other relevant documents files with the SEC, because
they will contain important information about the transaction. Stockholders and
investors may obtain the amended proxy statement and any other relevant
documents free of charge at the SEC's Internet web site at www.sec.gov.
Stockholders may also obtain free of charge the amended proxy statement and any
other relevant documents by contacting the office of the Corporate Secretary at
KCS' principal executive offices at (816) 983-1538. Written requests should be
mailed to P.O. Box 219335, Kansas City, Missouri 64121-9335 (or if by United
Parcel Service or other form of express delivery to 427 West 12th Street, Kansas
City, Missouri 64105). Such amended proxy statement is not currently available.
KCS and its directors and executive officers may be deemed to be participants in
the solicitation of proxies from KCS stockholders with respect to approval of
certain actions in connection with the transaction. Information regarding these
directors and executive officers and their beneficial ownership interests in KCS
can be found in KCS' proxy statement on Schedule 14A, filed with the SEC on
April 5, 2004, in connection with the 2004 annual meeting of KCS stockholders.
Investors may obtain additional information regarding the interest of such
participants by reading the amended proxy statement files in connection with the
transaction when it becomes available.
Item 9.01 Financial Statements and Exhibits
(c) Exhibits
Exhibit No. Document
(10) Material Contracts
10.1 Amendment and Waiver No. 1 to the Credit
Agreement and Amendment No. 1 to the
Security Agreement
(99) Additional Exhibits
99.1 Press release issued by Kansas City Southern
dated December 22, 2004 entitled "KCS Closes
on Amended Credit Facility," is attached
hereto as Exhibit 99.1.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Kansas City Southern
Date: December 29, 2004 By: /s/ James S. Brook
------------------------------------------
James S. Brook
Vice President and Comptroller
(Principal Accounting Officer)
EXHIBIT 10.1
EXECUTION COPY
AMENDMENT AND WAIVER NO. 1 TO THE CREDIT AGREEMENT
AND AMENDMENT NO. 1 TO THE SECURITY AGREEMENT
Dated as of December 22, 2004
AMENDMENT AND WAIVER NO. 1 TO THE CREDIT AGREEMENT AND 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 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 Trust and Savings Bank, as
documentation agent, have entered into that certain Credit Agreement dated as
of March 30, 2004 (as 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 desires to convert outstanding Term B Advances under
the Credit Agreement to a new class of Advances under the Credit Agreement,
having identical terms with, and having the same rights and obligations under
the Loan Documents, as the Term B Advances, as set forth in the Loan Documents,
except as such terms are amended hereby (the "Term B1 Advances").
(3) The Borrower desires to incur additional Term B1 Advances in an
amount equal to $100,000,000 in excess of the principal amount of Term B
Advances outstanding under the Credit Agreement prior to the effectiveness of
this Amendment No. 1.
(4) Each Term B Lender who executes and delivers this Amendment No. 1
shall be deemed, upon the effectiveness of this Amendment No. 1, to have
converted its Term B Commitment and Term B Advances (which Term B Commitment
and Term B Advances shall thereafter be deemed terminated and refinanced in
full) for a Term B1 Commitment (as hereinafter defined) and Term B1 Advances,
respectively, with such Term B1 Commitment, in the same aggregate principal
amount as such Lender's outstanding Term B Advances, immediately prior to the
effectiveness of this Amendment No. 1, as set forth in Schedule I to the Credit
Agreement, as amended as of the Amendment No. 1 Effective Date (as hereinafter
defined) (the "Amended Schedule I") (a copy of which has been delivered to the
Borrower), and such Term B Lender shall thereafter become a Term B1 Lender (as
hereinafter defined).
(5) Each Person who executes and delivers this Amendment No. 1 as an
additional Term B1 Lender (each, an "Additional Term B1 Lender"), will make
Term B1 Advances in the aggregate amount of its Additional Term B1 Commitment
(as hereinafter defined) on the Amendment No. 1 Effective Date (as hereinafter
defined) (each, an "Additional Term B1 Advance") to the Borrower in an
aggregate principal amount equal to the amount set forth opposite its name on
Amended Schedule I, the proceeds of which will be used by the Borrower, in
part, to refinance in full the outstanding principal amount of Term B Advances
of Term B Lenders, if any, who do not execute and deliver this Amendment No. 1,
it being understood that an Additional Term B1 Lender may be a Term B Lender
prior to the Amendment No. 1 Effective Date.
(6) The Borrower shall pay to each Term B Lender all accrued and
unpaid interest on its Term B Advances to the Amendment No. 1 Effective Date on
such Amendment No. 1 Effective Date.
(7) The Borrower has requested that the Required Lenders (a) waive
certain provisions set forth below, (b) amend the Credit Agreement (i) to
effect the changes described above and (ii) to make other amendments set forth
below and (c) amend the Security Agreement as set forth below.
(8) The Required Lenders and the Term B1 Lenders (as defined in this
Amendment No. 1) have agreed, subject to the terms and conditions hereinafter
set forth, to waive certain provisions to the Credit Agreement and to amend the
Credit Agreement and the Security 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. Waiver to the Credit Agreement. Effective as of the date
hereof and solely in respect of the Fiscal Years ending December 31, 2004 and
December 31, 2005, the Required Lenders hereby agree to waive the requirements
of Section 5.02(m) of the Credit Agreement, such waiver to remain in effect so
long as the aggregate amount of Capital Expenditures for such Fiscal Years,
taken together, does not exceed $275,000,000.
SECTION 2. 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 5 of this Amendment No. 1, hereby
amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended as follows:
(i) 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, 0.75% per annum for Base Rate
Advances and 1.75% per annum for Eurodollar Rate Advances."
(ii) By deleting the definition of "Commitment" in its entirety and
inserting the following definition in its place:
""Commitment" means a Term B1 Commitment, an Additional Term B1
Commitment, a Revolving Credit Commitment, a Swing Line Commitment or
a Letter of Credit Commitment."
(iii) By deleting the definition of "Lenders" in its entirety and
inserting the following definition in its place:
""Lenders" means the Initial Lenders, the Term B1 Lenders and each
Person that shall become a Lender hereunder pursuant to Section 9.07
for so long as such Initial Lender, Term B1 Lender or Person, as the
case may be, shall be a party to this Agreement."
(iv) By deleting the definition of "Term B Advance" in its entirety
and inserting the following definition in its place:
""Term B1 Advance" means, collectively, (a) with respect to each
Original Term B Lender that executes and delivers Amendment No. 1 on
or prior to the Amendment No. 1 Effective Date, a term advance or term
advances made by such Original Term B Lender pursuant to Section 2.01
(a)(ii) or deemed to have been made pursuant to Section 2.01(a)(i) and
(b) with respect to each Additional Term B1 Lender, its Additional
Term B1 Advance."
(v) By deleting the definition of "Term B Borrowing" in its entirety
and inserting the following definition in its place:
""Term B1 Borrowing" means a borrowing consisting of simultaneous Term
B1 Advances of the same Type made or deemed to have been made by the
Term B1 Lenders."
(vi) By deleting the definition of "Term B Commitment" in its entirety
and inserting the following definition in its place:
""Total Term B1 Commitment" means, collectively, (a) with respect to
each Term B1 Lender, the amount set forth opposite such Lender's name
on Amended Schedule I under the caption "Total Term B1 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 Term B1 Commitment", may be reduced at or prior
to such time pursuant to Section 2.05."
(vii) By deleting the definition of "Term B Facility" in its entirety
and inserting the following definition in its place:
""Term B1 Facility" means, at any time, the aggregate amount of the
Term B1 Lenders' Term B1 Commitments at such time."
(viii) By deleting the definition of "Term B Lender" in its entirety
and inserting the following definition in its place:
""Term B1 Lender" means, collectively, (a) each Original Term B Lender
that executes and delivers Amendment No. 1 on or prior to the
Amendment No. 1 Effective Date and (b) each Additional Term B1 Lender."
(ix) By deleting the definition of "Term B Note" in its entirety and
inserting the following definition in its place:
""Term B1 Note" means a promissory note of the Borrower payable to the
order of any Term B1 Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from the Term B1 Advance made or deemed made by such Lender,
as amended."
(x) By inserting the following new definitions therein in the
appropriate alphabetical order:
""Additional Term B1 Advance" means a term advance or term advances
made pursuant to Section 2.01(a)(ii) of this Agreement on the
Amendment No. 1 Effective Date.
"Additional Term B1 Borrowing" means a borrowing consisting of
simultaneous Additional Term B1 Advances of the same Type made by the
Additional Term B1 Lenders.
"Additional Term B1 Commitment" means, with respect to an Additional
Term B1 Lender, the commitment of such Additional Term B1 Lender to
make Additional Term B1 Advances on the Amendment No. 1 Effective Date,
in an amount in US Dollars set forth next to the name of such
Additional Term B1 Lender on Amended Schedule I thereto under the
caption "Additional Term B1 Commitment". The aggregate amount of the
Additional Term B1 Commitments shall be equal to the sum of (a) the
outstanding principal amount of Original Term B Advances of Original
Term B Lenders that do not execute and deliver Amendment No. 1 on or
prior to the Amendment No. 1 Effective Date and (b) $100,000,000.
"Additional Term B1 Lender" means a Person with an Additional Term B1
Commitment to make Additional Term B1 Advances to the Borrower on the
Amendment No. 1 Effective Date, it being understood that an Additional
Term B1 Lender may be an Original Term B Lender.
"Amended Schedule I" has the meaning specified in Amendment No. 1.
"Amendment No. 1" means the Amendment and Waiver No. 1 to the Credit
Agreement and Amendment No. 1 to the Security Agreement, dated as of
December 22, 2004, among the Borrower, the Agents and the Lenders party
thereto.
"Amendment No. 1 Effective Date" means December 22, 2004.
"Grupo TFM Notes" means the promissory notes issued in connection with
the Grupo TFM Acquisition by the Parent, KARA Sub, Inc., a Delaware
corporation, KCS Investment I, Ltd., a Delaware corporation, and
Caymex in an aggregate principal amount not to exceed $47,000,000.
"Original Term B Advance" means a "Term B Advance" as defined in
Section 1.01 of this Credit Agreement, as in effect prior to the
Amendment No. 1 Effective Date.
"Original Term B Lender" means a "Term B Lender" as defined in Section
1.01 of this Credit Agreement, as in effect prior to the Amendment
No. 1 Effective Date."
"Term B1 Commitment" means for each Original Term B Lender executing
this Amendment No. 1 the outstanding principal amount of its Original
Term B Advances, immediately prior to the effectiveness of this
Amendment No. 1.
(b) Section 2.01(a) of the Credit Agreement is hereby amended in its
entirety and replaced by the following:
"(i) Conversion. Subject to the terms and conditions hereof, each
Original Term B Lender with a Term B1 Commitment severally agrees that
Original Term B Advances made by such Original Term B Lender to the
Borrower prior to the Amendment No. 1 Effective Date shall be converted
to a like principal amount of Term B1 Advances on the Amendment No. 1
Effective Date, and from and after the Amendment No. 1 Effective Date
such Original Term B Advance shall be deemed to be a Term B1 Advance
made hereunder.
(ii) The Additional Term B1 Advances. Subject to the terms and
conditions hereof, each Additional Term B1 Lender severally agrees to
make Additional Term B1 Advances to the Borrower on the Amendment No. 1
Effective Date in a principal amount not to exceed its Additional Term
B1 Commitment. The Borrower shall use a portion of the proceeds of the
Additional Term B1 Advances to repay in full all Original Term B
Advances of the Original Term B Lenders that do not execute and deliver
the Amendment on the Amendment No. 1 Effective Date.
(iii) Reborrowing. Amounts borrowed under this Section 2.01(a)and
repaid or prepaid may not be reborrowed.
(iv) Interest Periods. On the Amendment No. 1 Effective Date, the
Borrower shall pay all accrued and unpaid interest on the Original Term
B Advances to the Original Term B Lenders; provided, however, that the
existing Interest Periods in effect for the Term B Advances outstanding
prior to the Amendment No. 1 Effective Date shall continue for such
Advances following conversion to Term B1 Advances on and after the
Amendment No. 1 Effective Date."
(c) Upon the Amendment No. 1 Effective Date, (i) the Term B1 Advances
shall have the same terms, rights and obligations as the Original Term B
Advances as set forth in the Loan Documents, except as modified by Section 1 of
this Amendment No. 1, (ii) all references to "Term B Advances", "Term B
Commitment", "Term B Facility", "Term B Note", "Term B Lenders" and "Term B
Borrowings" in the Loan Documents shall be deemed to be references to "Term B1
Advances", "Total Term B1 Commitment", "Term B1 Facility", "Term B1 Note",
"Term B1 Lenders" and "Term B1 Borrowing", respectively, and (iii) each
reference in the Credit Agreement to "Schedule I" shall be deemed to be a
reference to "Amended Schedule I".
SECTION 3. Other Amendments. The Credit Agreement is hereby further
amended as follows:
(a) Section 2.04(a) is hereby amended by deleting the table contained
therein in its entirety and replacing it with the following table:
Date Amount
---- ------
March 31, 2005 $623,125.00
June 30, 2005 $623,125.00
September 30, 2005 $623,125.00
December 31, 2005 $623,125.00
March 31, 2006 $623,125.00
June 30, 2006 $623,125.00
September 30, 2006 $623,125.00
December 31, 2006 $623,125.00
March 31, 2007 $623,125.00
June 30, 2007 $60,910,468.75
September 30, 2007 $60,910,468.75
December 31, 2007 $60,910,468.75
March 30, 2008 $60,910,468.75
(b) Section 5.02(b)(i)(G) is hereby amended and restated in its
entirety to read as follows:
"(G) Debt under the Grupo TFM Notes incurred in connection with the
closing of the Grupo TFM Acquisition or Debt that is otherwise
cancelled or extinguished as part of such closing.";
(c) Section 5.02(b)(i)(H) is hereby amended by deleting the word
"amortization" in the sixth line thereof and replacing it with "scheduled
payment of principal in cash of such Debt";
(d) Section 5.02(b)(i)(H)(i) is hereby amended by deleting
"2.50:1.00" in the third line thereof and replacing it with "2.75:1.00"; and
(e) Exhibit A-2 is deleted in its entirety and replaced by new
Exhibit A-2 attached hereto as Annex I.
SECTION 4. Amendment to the Security Agreement. Schedule II of the
Security Agreement is hereby deleted in its entirety and replaced with new
Schedule II attached hereto as Annex II.
SECTION 5. Conditions to Effectiveness. This Amendment No. 1 and
the amendments contained herein shall become effective as of the date hereof
(the "Amendment No. 1 Effective Date") when each of the conditions set forth
in this Section 5 to this Amendment No. 1 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. 1, duly executed and
delivered on behalf of each of the (a) Loan Parties, (b) the Required
Lenders, (c) each Original Term B Lender, or in lieu of one or more
Original Term B Lenders, one or more Additional Term B1 Lenders
providing Additional Term B1 Commitments in an amount sufficient to
repay all of theprincipal of the Original Term B Advances owed to such
non-consenting Original Term B Lenders and (d) one or more Additional
Term B1 Lenders providing Additional Term B1 Advances in an amount equal
to $100,000,000 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. 1.
(ii) Notice of Borrowing. The Borrower shall have provided the
Administrative Agent with a Notice of Borrowing in accordance with the
requirements of Section 2.02(a) of the Credit Agreement prior to the
Amendment No. 1 Effective Date with respect to the borrowing of the
Additional Term B1 Advances on the Amendment No. 1 Effective Date, except
that the three (3) Business Day notice requirement is hereby waived.
(iii) 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 Credit Agreement from and after the last invoice to the
extent invoiced.
(iv) Evidence of Debt. Each Term B1 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-2 to the
Credit Agreement, as modified by this Amendment No. 1, evidencing the
Term B1 Advances made by such Lender.
(v) Interest, Etc. Simultaneously with the conversion to or making of
the Term B1 Advances, the Borrower shall have paid to all the Original
Term B Lenders all accrued and unpaid interest on the Original Term B
Advances to the Amendment No. 1 Effective Date, in the case of the
repayment in full of any Original Term B Advances that are not converted
to Term B1 Advances, plus any loss or expense pursuant to Section 9.04(c)
of the Credit Agreement.
(vi) 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. 1 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. 1 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. 1, (B) the representations and warranties contained
in Section 6 of this Amendment No. 1 are true and correct and (C)
no event has occurred and is continuing that constitutes a Default.
(vii) Additional Collateral Documents. All necessary
modifications or confirmations to the Collateral Documents in effect on
the Amendment No. 1 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 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. 1) 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. 1 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. 1 Effective Date).
(viii) 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. 1 shall be reasonably satisfactory
to the Administrative Agent and its counsel.
(ix) No Default. No Default shall have occurred and be continuing, or
would occur as a result of the transactions contemplated by this
Agreement.
SECTION 6. 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. 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 7. 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. 1, 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. 1, 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. 1. 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 8. Reference to and Effect on the Loan Documents. (a) On and
after the effectiveness of this Amendment No. 1, 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. 1.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically 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. 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. 1.
(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 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. 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 facsimile shall be effective as delivery of a manually
executed original counterpart of this Amendment No. 1.
SECTION 10. 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 Credit
Agreement, as if this were a part of the Credit Agreement.
SECTION 11. 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.]
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: Vice President and Treasurer
KANSAS CITY SOUTHERN
By /s/ Paul J. Weyandt
-------------------------------------------------
Title: Vice President and Treasurer
SOUTHERN INDUSTRIAL SERVICES, INC.
By /s/ Jay M. Nadlman
-------------------------------------------------
Title: Secretary
TRANS-SERVE, INC.
By /s/ Jay M. Nadlman
-------------------------------------------------
Title: Secretary
VEALS, INC.
By /s/ Jay M. Nadlman
-------------------------------------------------
Title: Secretary
SIS BULK HOLDING, INC.
By /s/ Jay M. Nadlman
-------------------------------------------------
Title: Secretary
PABTEX GP, LLC
By /s/ Jay M. Nadlman
-------------------------------------------------
Title: Authorized Representative
PABTEX, L.P.
By /s/ Jay M. Nadlman
-------------------------------------------------
Title: Authorized Representative
GATEWAY EASTERN RAILROAD COMPANY
By /s/ Paul J. Weyandt
-------------------------------------------------
Title: Vice President and Treasurer
SCC HOLDINGS, LLC
By /s/ Jay M. Nadlman
-------------------------------------------------
Title: Authorized Representative
SOUTHERN DEVELOPMENT COMPANY
By /s/ Jay M. Nadlman
-------------------------------------------------
Title: Secretary
THE KANSAS CITY NORTHERN RAILWAY COMPANY
By /s/ Jay M. Nadlman
-------------------------------------------------
Title: Secretary
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By /s/ N. Bell
-------------------------------------------------
Title: N. Bell, Senior Manager
THE BANK OF NOVA SCOTIA,
as Collateral Agent
By /s/ N. Bell
-------------------------------------------------
Title: N. Bell, Senior Manager
Lenders:
Allstate Life Insurance Company
By: /s/ Chris Goergen
------------------------------------------------
Name: Chris Goergen
Title: Authorized Signatory
By: /s/ Eric A. Simonson
------------------------------------------------
Name: Erica A. Simonson
Title: Authorized Signatory
AIMCO CDO Series 2000-A
By: /s/ Chris Goergen
------------------------------------------------
Name: Chris Goergen
Title: Authorized Signatory
By: /s/ Eric A. Simonson
------------------------------------------------
Name: Erica A. Simonson
Title: Authorized Signatory
Lenders: American Express Certificate Company
By: American Express Asset Management Group, Inc.
as Collateral Manager
By: /s/ Yvonne E. Stevens
------------------------------------------------
Name: Yvonne E. Stevens
Title: Senior Managing Director
AMMC CDO I, LIMITED
By: American Money Management Corp.
as Collateral Manager
By: /s/ Chester M. Eng
------------------------------------------------
Name: Chester M. Eng
Title: Senior Vice President
AMMC CDO III, LIMITED
By: American Money Management Corp.
as Collateral Manager
By: /s/ Chester M. Eng
------------------------------------------------
Name: Chester M. Eng
Title: Senior Vice President
Lenders:
-------
APEX (IDM) CDO I, LTD.
BABSON CLO LTD. 2004-I
ELC (CAYMAN) LTD. CDO SERIES 1999-I
ELC (CAYMAN) LTD. 1999-II
ELC (CAYMAN) LTD. 1999-III
By: Babson Capital Management LLC
as Collateral Manager
By: /s/ Russell D. Morrison
---------------------------------------------------
Name: Russell D. Morrison
Title: Managing Director
MAPLEWOOD (CAYMAN) LIMITED
By: Babson Capital Management LLC
as Investment Manager
By: /s/ Russell D. Morrison
------------------------------------------------
Name: Russell D. Morrison
Title: Managing Director
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Babson Capital Management LLC
as Investment Adviser
By: /s/ Russell D. Morrison
------------------------------------------------
Name: Russell D. Morrison
Title: Managing Director
SAAR HOLDINGS CDO, LIMITED
By: Babson Capital Management LLC under delegated
authority from Massachusetts Mutual Life
Insurance Company
By: /s/ Russell D. Morrison
------------------------------------------------
Name: Russell D. Morrison
Title: Managing Director
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: /s/ Scott Baskind
------------------------------------------------
Name: Scott Baskind
Title: Authorized Signatory
Lenders:
THE BANK OF NEW YORK
By: /s/ Mark Wrigley
------------------------------------------------
Name: Mark Wrigley
Title: Vice President
Bank of Tokyo-Mitsubishi Trust Company
By: /s/ Christian Giordano
------------------------------------------------
Name: Christian Giordano
Title: Vice President
Lenders:
BIG SKY SENIOR LOAN FUND, LTD.
By: Eaton Vance Management
as Investment Advisor
By: /s/ J.
------------------------------------------------
Name:
Title: Vice President
Lenders: Centurion CDO 8, Limited
BY: American Express Asset Management Group, Inc.
as Collateral Manager
By: /s/ Vinicent P. Pham
------------------------------------------------
Name: Vincent P. Pham
Title: Director-Operations
Lenders: Centurion CDO II Ltd.,
BY: American Express Asset Management Group, Inc.
as Collateral Manager
By: /s/ Vinicent P. Pham
------------------------------------------------
Name: Vincent P. Pham
Title: Director-Operations
Lenders: Centurion CDO VI, Ltd.
BY: American Express Asset Management Group, Inc.
as Collateral Manager
By: /s/ Vinicent P. Pham
------------------------------------------------
Name: Vincent P. Pham
Title: Director-Operations
Lenders: Centurion CDO VII, Ltd.
BY: American Express Asset Management Group, Inc.
as Collateral Manager
By: /s/ Vinicent P. Pham
------------------------------------------------
Name: Vincent P. Pham
Title: Director-Operations
CHAMPLAIN CLO, LTD.
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
By: /s/ Scott Baskind
------------------------------------------------
Name: Scott Baskind
Title: Authorized Signatory
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
By: /s/ Scott Baskind
------------------------------------------------
Name: Scott Baskind
Title: Authorized Signatory
Lenders:
Citadel Hill 2000 Ltd.
By: /s/ Harry Amyotte
------------------------------------------------
Name: Harry Amyotte
Title: Authorized Signatory
Lenders:
CONSTANTINUS EATON VANCE, CDO V LTD.
By: Eaton Vance Management
As Investment Advisor
By: /s/ J.
------------------------------------------------
Name:
Title: Vice President
DIVERSIFIED CREDIT PORTFOLIO LTD.
By: INVESCO Senior Secured Management, Inc.
As Investment Adviser
By: /s/ Scott Baskind
------------------------------------------------
Name: Scott Baskind
Title: Authorized Signatory
Lenders:
EATON VANCE, CDO III LTD.
By: Eaton Vance Management As Investment Advisor
By: /s/ J.
------------------------------------------------
Name:
Title: Vice President
Lenders:
EATON VANCE, CDO VI LTD.
By: Eaton Vance Management As Investment Advisor
By: /s/ J.
------------------------------------------------
Name:
Title: Vice President
Lenders:
EATON VANCE INSTITUTIONAL SENIOR LOAN FUND
By: Eaton Vance Management As Investment Advisor
By: /s/ J.
------------------------------------------------
Name:
Title: Vice President
Lenders:
EATON VANCE VT FLOATING-RATE INCOME FUND
By: Eaton Vance Management As Investment Advisor
By: /s/ J.
------------------------------------------------
Name:
Title: Vice President
Lenders:
Fidelity Advisor Series II: Fidelity Advisor
Floating Rate High Income Fund
By: /s/ Frank K. Knox
------------------------------------------------
Name: Frank K. Knox
Title: Assistant Treasurer
Lenders:
Foothill Income Trust, II
By: /s/ Jeff Nicora
------------------------------------------------
Name: Jeff Nicora
Title: EVP
Lenders:
FRANKLIN CLO I, LIMITED
By: /s/ David Ardini
------------------------------------------------
Name: David Arndt
Title: Vice President
Lenders:
FRANKLIN CLO II, LIMITED
By: /s/ David Ardini
------------------------------------------------
Name: David Arndt
Title: Vice President
Lenders:
FRANKLIN CLO IV, LIMITED
By: _/s/ David Ardini
------------------------------------------------
Name: David Arndt
Title: Vice President
Lenders:
FRANKLIN FLOATING RATE DAILY ACCESS FUND
By: /s/ Madeline Lam
------------------------------------------------
Name: Madeline Lam
Title: Vice President
Lenders:
FRANKLIN FLOATING RATE MASTER SERIES
By: /s/ Madeline Lam
------------------------------------------------
Name: Madeline Lam
Title: Vice President
Lenders:
GRAYSON & CO
By: Boston Management and Research
As Investment Advisor
By: /s/ J.
------------------------------------------------
Name:
Title: Vice President
Lenders:
Harris Trust and Savings Bank
By: /s/ Patrick McDonnell
------------------------------------------------
Name: Patrick McDonnell
Title: Managing Director
Hewett's Island CDO, Ltd.
By: CypressTree Investment Management Company, Inc.
as Portfolio Manaager.
By: /s/ Jeffrey Megar
------------------------------------------------
Name: Jeffrey Megar
Title: Managing Director
Lenders: IDS Life Insurance Company
BY: American Express Asset Management Group, Inc.
as Collateral Manager
By: /s/ Yvonne E. Stevens
------------------------------------------------
Name: Yvonne E. Stevens
Title: Senior Managing Director
INVESCO CBO 2000-1 LTD.
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: /s/ Angela Gambardella
------------------------------------------------
Name: Angela Gambardella
Title: Authorized Signatory
INVESTORS BANK & TRUST COMPANY AS SUB-CUSTODIAN AGENT OF CYPRESSTREE
INTERNATIONAL LOAN HOLDING COMPANY LIMITED
By: /s/ Jeffrey Megar
------------------------------------------------
Name: Jeffrey Megar
Title: Managing Director
By: /s/ Preston I. Carnes, Jr.
------------------------------------------------
Name: Preston I. Carnes, Jr.
Title: Managing Director
Lenders:
JUPITER LOAN FUNDING LLC
By: /s/ Diana M. Himes
------------------------------------------------
Name: Diana M. Himes
Title: Assistant Vice President
Lenders:
KZH CYPRESSTREE-1 LLC
By: /s/ Hi Hua
------------------------------------------------
Name: Hi Hua
Title: Authorized Agent
Lenders:
KZH PONDVIEW LLC
By: /s/ Hi Hua
------------------------------------------------
Name: Hi Hua
Title: Authorized Agent
Lenders:
KZH SOLEIL-2 LLC
By: /s/ Hi Hua
------------------------------------------------
Name: Hi Hua
Title: Authorized Agent
Lenders:
KZH STERLING LLC
By: /s/ Hi Hua
------------------------------------------------
Name: Hi Hua
Title: Authorized Agent
Lenders:
LaSalle Bank National Association
By: /s/ Robert W. Hart
------------------------------------------------
Name: Robert W. Hart
Title: Senior Vice President
MACQUARIE/FIRST TRUST GLOBAL
INFRASTRUCTURE/UTILITIES DIVIDEND & INCOME FUND
By: Four corners Capital Management, LLC
As Sub-Adviser
By: /s/ Vijay Srinivasan
------------------------------------------------
Name: Vijay Srinivasan
Title: Assistant Vice President
Lenders:
MetLife Bank National Association
By: /s/ James R. Dingler
------------------------------------------------
Name: James R. Dingler
Title: Director
Lenders:
MetLife Life Insurance Company
By: /s/ James R. Dingler
------------------------------------------------
Name: James R. Dingler
Title: Director
Lenders:
Monument Capital Ltd., as Assignee
By: Alliance Capital Management L.P.,
as Investment Manager
By: Alliance Capital Management Corporation.
As General Partner
By: /s/ Sverker Johansson
------------------------------------------------
Name: Sverker Johansson
Title: Senior Vice President
Lenders:
Monument Capital Ltd., as Assignee
By: Alliance Capital Management L.P.,
as Investment Manager
By: Alliance Capital Management Corporation.
As General Partner
By: /s/ Sverker Johansson
------------------------------------------------
Name: Sverker Johansson
Title: Senior Vice President
Lenders:
ML CLO XV PILGRIM AMERICA (CAYMAN) LTD
BY: ING Investments, LLC
as its investment manager
By: /s/ Theodore M. Haag
------------------------------------------------
Name: Theodore M. Haag
Title: Vice President
Lenders:
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD
BY: ING Investments, LLC
as its investment manager
By: /s/ Theodore M. Haag
------------------------------------------------
Name: Theodore M. Haag
Title: Vice President
PETRUSSE EUROPEAN CLO S.A By: INVESCO
Senior Secured Management, Inc.
As Collateral Manager
By: /s/ Scott Baskind
------------------------------------------------
Name: Scott Baskind
Title: Authorized Signatory
Lenders:
PILGRIM AMERICA HIGH INCOME INVESTMENTS LTD
BY: ING Investments, LLC
as its investment manager
By: /s/ Theodore M. Haag
------------------------------------------------
Name: Theodore M. Haag.
Title: Vice President
Lenders:
Prometheus Investment Funding No. 2 LTD.
By: HVB Credit Advisors LLC
/s/ James T. Li
-------------------------------------------------
Name: James T. Li
Title: Associate Director
/s/ Elizabeth Tallmadge
------------------------------------------------
Name: Elizabeth Tallmadge
Title: Managing Director
Chief Investment Officer
SAGAMORE CLO LTD.
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
By: /s/ Scott Baskind
------------------------------------------------
Name: Scott Baskind
Title: Authorized Signatory
SARATOGA CLO I, LIMITED.
By: INVESCO Senior Secured Management, Inc.
As Asset Manager
By: /s/ Scott Baskind
------------------------------------------------
Name: Scott Baskind
Title: Authorized Signatory
Lenders:
SENIOR DEBT PORTFOLIO
By: Boston/Management and Research
as Investment Advisor
By: /s/ J.
------------------------------------------------
Name:
Title: Vice President
Lenders: Sequils-Centurion V, Ltd.
By American Express Asset Management Group, Inc.
as Collateral Manager
By: /s/ Vincent P. Pham
------------------------------------------------
Name: Vincent P. Pham
Title: Director-Operations
SEQUILS-LIBERTY, LTD
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
By: /s/ Scott Baskind
------------------------------------------------
Name: Scott Baskind
Title: Authorized Signatory
Lenders:
Stein Roe & Farnham CLO I LTD.,
By: Columbia Management Advisors, Inc.
as Portfolio Manager
By: /s/ Mark S. Pelletier
------------------------------------------------
Name: Mark S. Pelletier
Title: Vice President
Lenders:
The Sumitomo Trust & Banking Co., Ltd. New York
Branch
By: /s/ Elizabeth A. Quirk
------------------------------------------------
Name: Elizabeth A. Quirk
Title: Vice President
Lenders:
SunAmerica Life Insurance Company
By: AIG Global Investment Corp.
Its Investment Advisor
By: /s/ W. Jeffrey Baxter
------------------------------------------------
Name: W. Jeffrey Baxter
Title: Vice President
Galaxy CLO 1999-1, Ltd
By: AIG Global Investment Corp.
Its Collateral Manager
By: /s/ W. Jeffrey Baxter
------------------------------------------------
Name: W. Jeffrey Baxter
Title: Vice President
Galaxy CLO 2003-1, Ltd
By: AIG Global Investment Corp.
Its Investment Advisor
By: /s/ W. Jeffrey Baxter
------------------------------------------------
Name: W. Jeffrey Baxter
Title: Vice President
Lenders:
Tolli & Co.
By: Eaton Vance Management
As Investment Advisor
By: /s/ J.
------------------------------------------------
Name:
Title: Vice President
UMB Bank, n.a.
By: /s/ Terry Dierks
------------------------------------------------
Name: Terry Dierks
Title: Senior Vice President
Lenders:
VAN KAMPEN CLO II, LIMITED
By: Van Kampen Investment Advisory Corp
As Collateral Manager
By: /s/ William Louga
------------------------------------------------
Name: William Louga
Title: Executive Director
Lenders:
Venture III CDO, Limited
By its investment advisor MJX Asset Management LLC
By: /s/ Kenneth Ostmann
------------------------------------------------
Name: Kenneth Ostmann
Title: Director
Lenders:
WINGED FOOT FUNDING TRUST
By: /s/ Diana M. Himes
------------------------------------------------
Name: Diana M. Himes
Title: Authorized Agent
Annex 1
EXHIBIT A-2
FORM OF
TERM B1 NOTE
Annex II
SCHEDULE II:
PLEDGED EQUITY
EXHIBIT 99.1
Date: December 22, 2004
Contact: William H. Galligan Phone: 816/983-1551
William.h.galligan@kcsr.com
KCS Closes on Amended Credit Facility
Kansas City, Missouri. Kansas City Southern ("KCS") (KSU:NYSE) announced today
that the company, its wholly owned subsidiary, The Kansas City Southern Railway
Company ("KCSR"), and certain of its subsidiaries had entered into an amendment
and waiver of its existing credit agreement. The credit agreement was amended
to, among other things, increase the term loan by $100,000,000 to a total amount
outstanding of $249,250,000 and decrease the borrowing spread by 25 basis points
to 175 basis points over LIBOR. In addition, a waiver was granted that would
allow KCSR to make an additional $55 million of capital expenditures during 2004
and 2005. The maturity date of the credit agreement remains unchanged.
The Bank of Nova Scotia and Morgan Stanley Senior Funding, Inc. acted as joint
lead arrangers. The funds borrowed under the amended credit facility were
deposited into the Closing Escrow established under the terms of the December
15, 2004 Amended and Restated Acquisition Agreement.
KCS is comprised of, among others, The Kansas City Southern
Railway Company ("KCSR") and equity investments in Grupo TFM, Southern Capital
Corporation ("Southern Capital") and Panama Canal Railway Company ("PCRC").
This press release includes statements concerning potential future events
involving the Company, which could materially differ from the events that
actually occur. The differences could be caused by a number of factors including
those factors identified in the "Risk Factors" and the "Cautionary Information"
sections of the Company's Form 10-K for the year-ended December 31, 2003 filed
by the Company with the Securities and Exchange Commission ("SEC") (Commission
file no. 1-4717). The Company will not update any forward-looking statements in
this press release to reflect future events or developments.