Exhibit 10.6.1
REAFFIRMATION AGREEMENT, dated as of June 12, 2002 (as
the same may from time to time be amended, supplemented or
otherwise modified, this "Agreement"), among KANSAS CITY
SOUTHERN, a Delaware corporation ("Holdings"), THE KANSAS
CITY SOUTHERN RAILWAY COMPANY, a Missouri Corporation ("the
Borrower") and JPMORGAN CHASE BANK (formerly known as The
Chase Manhattan Bank), as Administrative Agent (in such
capacity, "JPMorgan Chase") under the Credit Agreement
referred to below.
WHEREAS Holdings, the Borrower, the Lenders party thereto, and JPMorgan
Chase have entered into the Amendment and Restatement Agreement (the "Amendment
Agreement"), dated as of June 12, 2002, which provides for the amendment and
restatement of the Credit Agreement dated as of January 11, 2000 (as amended
after giving effect to the Amendment Agreement, the "Credit Agreement") among
Holdings, the Borrower, the Lenders from time to time party thereto and JPMorgan
Chase;
WHEREAS each of the parties signatory hereto (each a "Reaffirming Party")
is party to one or more of the Security Documents (such term and each other
capitalized term used but not defined herein having the meaning assigned in the
Credit Agreement), and each of the Subsidiary Loan Parties is party to the
Guaranty Agreement and the Indemnity Subrogation and Contribution Agreement (the
Security Documents, the Guaranty Agreement and the Indemnity Subrogation and
Contribution Agreement herein together referred to as the "Collateral
Documents").
WHEREAS each Reaffirming Party expects to realize, or has realized,
substantial direct and indirect benefits as a result of the Amendment Agreement
becoming effective and the consummation of the transactions contemplated
thereby; and
WHEREAS the execution and delivery of this Agreement is a condition
precedent to the effectiveness of the Amendment Agreement and the consummation
of the transactions contemplated thereby;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
Reaffirmation/Amendment and Restatement
SECTION 1.01. Reaffirmation. Each of the Reaffirming Parties hereby
consents to the Amendment Agreement and the transactions contemplated thereby
and hereby confirms its respective guarantees, pledges and grants of security
interests, as applicable, under each of the Collateral Documents to which it is
party, and agrees that notwithstanding the effectiveness of the Amendment
Agreement and the consummation of the transactions contemplated thereby such
guarantees, pledges and grants of security interests shall continue to be in
full force and effect and shall accrue to the benefit of the Secured Parties (as
defined in the Credit Agreement). Each of the Reaffirming Parties further agrees
to take any action that may be required or that is reasonably requested by the
Administrative Agent to ensure compliance by the Borrower with Sections 5.12 and
5.13 of the Credit Agreement and hereby reaffirms its obligations under each
similar provision of each Collateral Document to which it is party.
SECTION 1.02. Amendment and Restatement. On and after the effectiveness of
the Amendment Agreement, (i) each reference in each Collateral Document to the
"Credit Agreement", "thereunder", "thereof" or words of like import shall mean
and be a reference to the Credit Agreement as may be amended, modified or
supplemented and in effect from time to time, (ii) the definition of any term
defined in any Collateral Document by reference to the terms defined in the
Credit Agreement shall be amended to be defined by reference to the defined term
in the Credit Agreement, as amended, modified or supplemented and in effect from
time to time and (iii) Schedule I to the Pledge Agreement is hereby amended as
set forth on Schedule I hereto.
ARTICLE II
Representations and Warranties
Each Reaffirming Party hereby represents and warrants, which
representations and warranties shall survive execution and delivery of this
Agreement, as follows:
SECTION 2.01. Organization. Such Reaffirming Party is duly organized and
validly existing in good standing under the laws of the jurisdiction of its
formation.
SECTION 2.02. Authority, Enforceability. Such Reaffirming Party has the
power and authority to execute, deliver and carry out the terms and provisions
of this Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement. Such Reaffirming Party has
duly executed and delivered this Agreement, and this Agreement constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms.
SECTION 2.03. Loan Documents. The representations and warranties of such
Reaffirming Party contained in each Loan Document are true and correct in all
material respects on and as of the date hereof with the same effect as though
made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties shall have been true and correct in all material
respects as of such earlier date).
ARTICLE III
Miscellaneous
SECTION 3.01. Notices. All notices and other communications hereunder shall
be made at the addresses, in the manner and with the effect provided in Article
IX of the Credit Agreement; provided that, for this purpose, the address of each
Reaffirming Party shall be the one specified for Holdings or the Borrower under
the Credit Agreement.
SECTION 3.02. Expenses. Each Reaffirming Party agrees to pay all reasonable
costs, fees and expenses (including reasonable attorneys' fees and time charges
of attorneys for JPMorgan Chase or any Lender, which attorneys may be employees
of JPMorgan Chase or any Lender) incurred by JPMorgan Chase or any Lender in
enforcing any Reaffirming Party's obligations under this Agreement.
SECTION 3.03. Loan Document. This Agreement is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof.
SECTION 3.04. Section Captions. Section captions used in this Agreement are
for convenience of reference only and shall not affect the construction of this
Agreement.
SECTION 3.05. Severability. Wherever possible each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
SECTION 3.06. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns.
SECTION 3.07. Amendment. This Agreement may be waived, modified or amended
only by a written agreement executed by each of the parties hereto.
SECTION 3.08. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original but all of which
shall together constitute one and the same agreement. Delivery of an executed
counterpart of a signature page of this Agreement by facsimile transmission
shall be effective as delivery of a manually executed counterpart of this
Agreement.
SECTION 3.09. No Novation. Neither this Agreement nor the execution,
delivery or effectiveness of the Amendment Agreement shall extinguish the
obligations for the payment of money outstanding under the Amendment Agreement
or the Credit Agreement or discharge or release the Lien or priority of any
Security Document or any other security therefor. Nothing herein contained shall
be construed as a substitution or novation of the obligations outstanding under
the Amendment Agreement or the Credit Agreement or instruments securing the
same, which shall remain in full force and effect, except to any extent modified
hereby or by instruments executed concurrently herewith. Nothing implied in this
Agreement, the Amendment Agreement or in any other document contemplated hereby
or thereby shall be construed as a release or other discharge of any Borrower or
any Guarantor or any Pledgor or any Grantor under any Collateral Document from
any of its obligations and liabilities as a "Borrower", "Subsidiary Guarantor",
"Subsidiary Loan Party", "Subsidiary Pledgor", "Subsidiary Grantor",
"Guarantor", "Loan Party", "Pledgor" or "Grantor" under the Credit Agreement or
the Collateral Documents. Each of the Credit Agreement and the Collateral
Documents shall remain in full force and effect, until (as applicable) and
except to any extent modified hereby or by the Amendment Agreement or in
connection herewith and therewith.
IN WITNESS WHEREOF, each Reaffirming Party and JPMorgan Chase as
Administrative Agent for the benefit of the Lenders caused this Agreement to be
duly executed and delivered as of the date first above written.
KANSAS CITY SOUTHERN,
by /s/ Paul J. Weyandt
-----------------------------------
Name: Paul J. Weyandt
Title: Vice President & Treasurer
THE KANSAS CITY SOUTHERN
RAILWAY COMPANY,
by /s/ Paul J. Weyandt
-----------------------------------
Name: Paul J. Weyandt
Title: Vice President & Treasurer
THE KANSAS CITY NORTHERN
RAILWAY COMPANY,
by /s/ Robert H. Berry
-----------------------------------
Name: Robert H. Berry
Title: Vice President & CFO
CAYMEX TRANSPORTATION, INC.,
by /s/ Robert H. Berry
-----------------------------------
Name: Robert H. Berry
Title: Vice President & Treasurer
GATEWAY EASTERN RAILWAY
COMPANY,
by /s/ Paul J. Weyandt
-----------------------------------
Name: Paul J. Weyandt
Title: Vice President & Treasurer
SCC HOLDINGS, INC.,
by /s/ Robert H. Berry
-----------------------------------
Name: Robert H. Berry
Title: Authorized Representative
MID-SOUTH MICROWAVE, INC.,
by /s/ Robert H. Berry
-----------------------------------
Name: Robert H. Berry
Title: Vice President & Treasurer
PABTEX, L.P.,
by /s/ Robert H. Berry
-----------------------------------
Name: Robert H. Berry
Title: Authorized Representative
PABTEX GP, LLC,
by /s/ Robert H. Berry
-----------------------------------
Name: Robert H. Berry
Title: Authorized Representative
RICE-CARDEN CORPORATION,
by /s/ Robert H. Berry
-----------------------------------
Name: Robert H. Berry
Title: Vice President & Treasurer
SIS BULK HOLDINGS, INC.,
by /s/ Robert H. Berry
-----------------------------------
Name: Robert H. Berry
Title: Vice President & Treasurer
SOUTHERN DEVELOPMENT
COMPANY,
by /s/ Robert H. Berry
-----------------------------------
Name: Robert H. Berry
Title: Vice President & Treasurer
SOUTHERN INDUSTRIAL SERVICES,
INC.,
by /s/ Robert H. Berry
-----------------------------------
Name: Robert H. Berry
Title: Vice President & Treasurer
TRANS-SERVE, INC.,
by /s/ Robert H. Berry
-----------------------------------
Name: Robert H. Berry
Title: Vice President & Treasurer
VEALS, INC.,
by /s/ Robert H. Berry
-----------------------------------
Name: Robert H. Berry
Title: Vice President & Treasurer
JPMORGAN CHASE BANK, as
Administrative Agent,
by /s/ Julie S. Long
-----------------------------------
Name: Julie S. Long
Title: Vice President
Schedule I to Reaffirmation Agreement
EQUITY INTERESTS
- --------------------------------------------------------------------------------
Ownership Percent
Registered Owner Class Number Represented by
Name of Entity Whose Entity Interests are being of Equity Interests of Equity of Equity Equity Interests
Pledged (and jurisdiction of organization) being pledged Interests Cert No. Interests Being Pledged
- ----------------------------------------------- ------------------- ---------- -------- --------- -----------------
Caymex Transportation, Inc. (Cayman Islands,
domesticated in Delaware) KCSR Common 4 100 100%
Gateway Eastern Railway Company (Illinois) KCSR Common 1 1,000 100%
The Kansas City Northern Railway Company (Delaware) KCSR Common 3 10 100%
The Kansas City Southern Railway Company (Missouri) KCS Preferred KP 445 57 100%
The Kansas City Southern Railway Company (Con't) KCS Common KC 418 9,840,000 100%
Mid-South Microwave, Inc. (Delaware) KCSR Common 5 1,000 100%
PABTEX, L.P. (formerly known as Global Terminaling PABTEX GP, LLC Partnership 1 1 1%
Services, Inc.) (Delaware) Interests
SIS Bulk Holding, 2 99 99%
Inc.
PABTEX GP, LLC (Texas) SIS Membership 1 100 100%
Interests
Rice-Carden Corporation (Missouri) KCSR Common 31 1,000 100%
SCC Holdings, LLC (Delaware) KCSR Membership --- --- 100%
Interests
SIS Bulk Holding, Inc. (Delaware) SIS Common 1 1,000 100%
Southern Development Company (Missouri) KCSR Common 19 100 100%
Southern Industrial Services, Inc. (Delaware) KCS Common 4 110 100%
Trans-Serve, Inc. (Delaware) SIS Common A5 1,000 100%
Veals, Inc. (Delaware) KCS Common 8 100 100%