Exhibit 1.1
EXECUTION VERSION
THE KANSAS
CITY SOUTHERN RAILWAY COMPANY
$500,000,000
4.950% Senior Notes due 2045
UNDERWRITING AGREEMENT
July 22, 2015
Citigroup Global Markets Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. LLC
Underwriting Agreement
CITIGROUP GLOBAL MARKETS INC.
388 Greenwich Street
New York, NY 10013
MERRILL LYNCH, PIERCE, FENNER &
SMITH
INCORPORATED
One Bryant Park
New York, NY 10036
MORGAN STANLEY & CO. LLC
1585 Broadway
New York, NY 10036
As Representatives of the several Underwriters
c/o MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
One Bryant Park
New York, NY 10036
Ladies and Gentlemen:
Introductory.
The Kansas City Southern Railway Company, a Missouri corporation (the “
Company
”), a
wholly-owned
subsidiary of Kansas City Southern (the “
Parent
”), proposes to issue and sell to the several underwriters named in Schedule A hereto (the “
Underwriters
”), acting
severally and not jointly, the respective amounts set forth in such Schedule A of $500,000,000 aggregate principal amount of the Company’s 4.950% Senior Notes due 2045 (the “
Notes
”). Citigroup Global Markets Inc., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC have agreed to act as representatives of the several Underwriters (in such capacity, the “
Representatives
”) in connection with the
offering and sale of the Securities (as defined below).
The Securities will be issued pursuant to an indenture, to be dated as of the
Closing Date (as defined in Section 2 hereof) (the “
Base Indenture
”), among the Company, the Guarantors (as defined below) and U.S. Bank National Association, as trustee (the “
Trustee
”). Certain terms of the
Securities will be established pursuant to a supplemental indenture, to be dated as of the Closing Date (the “
Supplemental Indenture
”) to the Base Indenture (together with the Base Indenture, the “
Indenture
”). The
Securities will be issued in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the “
Depositary
”). Pursuant to the Indenture, the Notes will be guaranteed (the
“
Guarantees
” and, together with the Notes, the “
Securities
”), jointly and severally, on a senior unsecured, unconditional basis by the entities listed on Schedule B hereto (the “
Guarantors
”).
The Company has prepared and filed with the Securities and Exchange Commission (the
“
Commission
”) a registration statement on Form
S-3
(File
No. 333-200411),
which contains a base prospectus (the “
Base
Prospectus
”), to be used in connection with the public offering and sale of debt securities, including the Securities, and other securities of the Company under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (collectively, the “
Securities Act
”), and the offering thereof from time to time in accordance with Rule 415 under the Securities Act. Such registration statement, including the financial statements,
exhibits and schedules thereto, in the form in which it became effective under the Securities Act, including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act, is
called the “
Registration Statement
.” The term “
Prospectus
” shall mean the final prospectus supplement relating to the Securities, together with the Base Prospectus, that is first filed pursuant to Rule 424(b)
after the date and time that this Agreement is executed (the “
Execution Time
”) by the parties hereto. The term “
Preliminary Prospectus
” shall mean any preliminary prospectus supplement relating to the Securities,
together with the Base Prospectus, that is first filed with the Commission pursuant to Rule 424(b). Any reference herein to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the
documents that are or are deemed to be incorporated by reference therein pursuant to Item 12 of
Form S-3
under the Securities Act prior to 4:10 p.m. on the date hereof (the “
Initial Sale
Time
”). All references in this Agreement to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval System (“
EDGAR
”).
All references in this Agreement to financial
statements and schedules and other information which is “contained,” “included” or “stated” (or other references of like import) in the Registration Statement, the Prospectus or the Preliminary Prospectus shall be
deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, prior
to the Initial Sale Time; and all references in this Agreement to amendments or supplements to the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and include any document that is filed with the
Commission under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “
Exchange Act
”), which is or is deemed to be incorporated by reference in the Registration
Statement, the Prospectus or the Preliminary Prospectus, as the case may be, after the Initial Sale Time.
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The Company hereby confirms its agreements with the Underwriters as follows:
SECTION 1.
Representations and Warranties of the Company and the Guarantors.
Each of the Company and the Guarantors hereby, jointly and severally, represents and warrants to each Underwriter as of the date hereof and as
of the Closing Date (in each case, a “
Representation Date
”), as follows:
(a)
Compliance with Registration
Requirements
. The Company and the Guarantors meet the requirements for use of
Form S-3
under the Securities Act. The Registration Statement has become effective under the Securities Act and no stop
order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the best of the Parent’s knowledge, are contemplated or
threatened by the Commission. In addition, on or before the Closing Date, the Base Indenture will be duly qualified under the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (the “
Trust Indenture
Act
”).
At the respective times the Registration Statement and any
post-effective
amendments thereto (including the filing with the Commission of the Parent’s Annual Report on Form
10-K
for the year ended December 31, 2014 (the “
Annual Report on Form
10-K
”)) became effective and at each Representation Date, the Registration Statement and any amendments thereto (i) complied and will comply in all material respects with the requirements of the
Securities Act and the Trust Indenture Act, and (ii) did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
At the date of the Prospectus and at the Closing Date, neither the Prospectus nor any amendments or supplements thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the representations and warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or any
post-effective
amendment or the Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information furnished to the Company in
writing by any of the Underwriters through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as
such in Section 8 hereof.
Each Preliminary Prospectus and the Prospectus, at the time each was filed with the SEC, complied in all
material respects with the Securities Act, and the Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Securities will, at the time of such delivery, be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(b)
Disclosure Package
. The term “
Disclosure Package
” shall mean (i) the Preliminary Prospectus dated
July 22, 2015, (ii) the issuer free writing prospectuses as defined in Rule 433 of the Securities Act (each, an “
Issuer Free Writing Prospectus
”), if any, identified in Annex I hereto and (iii) any other free
writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package. As of the Initial Sale Time, the Disclosure Package did not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package
based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter
through the Representatives consists of the information described as such in Section 8 hereof.
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(c)
Incorporated Documents
. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the Prospectus at the time they were or hereafter are filed with the Commission, complied or will comply in all material respects with the applicable requirements of the
Exchange Act.
(d)
Parent is a Well-Known Seasoned Issuer
. (i) At the time of filing the Registration Statement, (ii) at
the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by
post-effective
amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company, the Guarantors or any person acting on their behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities
Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 of the Securities Act, and (iv) as of the Execution Time, the Parent was and is a “well known seasoned issuer” as defined in Rule 405 of
the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 of the Securities Act, that automatically became effective not more than three years prior to the Execution Time;
neither the Company nor the Guarantors has received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form and neither the Company nor the Guarantors
has otherwise ceased to be eligible to use the automatic shelf registration form.
(e)
Neither the Company nor any of the Guarantors is
an Ineligible Issuer
. (i) At the time of filing the Registration Statement and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), neither the Company nor any of the
Guarantors was, and neither the Company nor any of the Guarantors is, an Ineligible Issuer (as defined in Rule 405 of the Securities Act), without taking account of any determination by the Commission pursuant to Rule 405 of the Securities
Act that it is not necessary that the Company or any of the Guarantors be considered an Ineligible Issuer.
(f)
Issuer Free Writing
Prospectuses
. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offering of the Securities under this Agreement or until any earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the
Prospectus. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained
in the Registration Statement, the Preliminary Prospectus or the Prospectus, the Company has promptly notified or will promptly notify the Representatives and has promptly amended or supplemented or will promptly amend or supplement, at its own
expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information
described as such in Section 8 hereof.
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(g)
Distribution of Offering Material By the Company and the Guarantors
. Each of the
Company and the Guarantors has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriters’ distribution of the Securities, any offering material in connection with the offering and
sale of the Securities other than the Registration Statement, the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the Representatives and included in Annex I hereto or any electronic road show
or other written communications reviewed and consented to by the Representatives and listed on Annex II hereto (each a, “
Company Additional Written Communication
”). Each such Company Additional Written Communication, when taken
together with the Disclosure Package, did not as of the Initial Sale Time, and will not at the Closing Date, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from each such Company Additional Written Communication based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information
described as such in Section 8 hereof.
(h)
No Applicable Registration or Other Similar Rights
. There are no persons with
registration or other similar rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as have been duly waived.
(i)
The Underwriting Agreement
. This Agreement has been duly authorized, executed and delivered by each of the Company and the
Guarantors.
(j)
Authorization of the Indenture
. Each of the Base Indenture and the Supplemental Indenture has been duly authorized
by each of the Company and the Guarantors and, when executed and delivered by each of the Company and the Guarantors, will constitute a valid and binding agreement of each of the Company and the Guarantors, enforceable against each of the Company
and the Guarantors in accordance with its terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors or by general equitable principles (whether applied by a court of law or equity), including the principle that equitable remedies may be granted only at the discretion of the court before which any
proceeding therefor may be brought (the “
Enforceability Exceptions
”).
(k)
Authorization of the Securities
. The
Securities to be purchased by the Underwriters from the Company will be, at the Closing Date, in the form contemplated by the Indenture, have been duly authorized by each of the Company and the Guarantors for issuance and sale pursuant to this
Agreement and the Indenture and, at the Closing Date, will have been duly executed by each of the Company and the Guarantors, as applicable, and, when
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authenticated in the manner provided for in the Indenture and delivered against payment of the purchase price therefor, will constitute valid and binding obligations of each of the Company and
the Guarantors, as applicable, enforceable in accordance with their terms, except as the enforcement thereof may be limited by the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(l)
Description of the Securities and the Indenture
. The Securities and the Indenture conform in all material respects to the
descriptions thereof contained in the Disclosure Package and the Prospectus.
(m)
Accuracy of Statements
. The statements in each of
the Disclosure Package and the Prospectus under the captions “Description of Notes,” “Description of the Debt Securities and Guarantees” and “United States Federal Income Taxation,” in each case insofar as such
statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present and summarize, in all material respects, the matters referred to therein.
(n)
No Material Adverse Change
. Except as otherwise disclosed in the Disclosure Package, subsequent to the respective dates as of which
information is given in the Disclosure Package there has been no material adverse change, or any development that could reasonably be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings,
business, properties, results of operations or prospects, whether or not arising from transactions in the ordinary course of business, of any of the Company, the Guarantors or their respective subsidiaries, considered as one entity (any such change
is called a “
Material Adverse Change
”).
(o)
Independent Accountants
. KPMG LLP (“
KPMG
”), who have
audited the consolidated financial statements of the Parent and its subsidiaries and delivered their report with respect to the consolidated financial statements of the Parent and its subsidiaries for the fiscal years ended December 31, 2014,
2013 and 2012 incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus, are independent public accountants with respect to the Company and the Parent within the meaning and as required by the Securities
Act, the Exchange Act and the applicable rules and regulations published thereunder and are an independent registered public accounting firm with the Public Company Accounting Oversight Board.
(p)
Preparation of the Financial Statements
. The financial statements together with the related notes thereto incorporated by reference
in the Registration Statement, the Preliminary Prospectus and the Prospectus present fairly the consolidated financial position of the Parent and its subsidiaries as of and at the dates indicated and the results of their operations and cash flows
for the periods specified. Such financial statements comply as to form with the accounting requirements of the Securities Act and have been prepared in conformity with generally accepted accounting principles (“
GAAP
”) in the United
States, applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
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(q)
Incorporation and Good Standing of the Company, the Guarantors and their Significant
Subsidiaries
. Each of the Company, the Guarantors and their respective significant subsidiaries (as defined in
Rule 1-02(10)
of
Regulation S-X,
the
“
Significant Subsidiaries
”) has been duly incorporated or formed, as applicable, and is validly existing as a corporation or limited liability company, as applicable, in good standing under the laws of the jurisdiction of its
incorporation or formation, as applicable, and has corporate or limited liability company power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Disclosure Package and the
Prospectus and, in the case of the Company and the Guarantors, to enter into and perform its obligations under this Agreement. Each of the Company, the Guarantors and each Significant Subsidiary is duly qualified as a foreign corporation or limited
liability company, as applicable, to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, have a material adverse effect (i) on the condition, financial or otherwise, or in the earnings, business, properties, results
of operations or prospects, whether or not arising from transactions in the ordinary course of business, of the Company, the Guarantors and their respective subsidiaries, considered as one entity or (ii) the ability of the Company or the
Guarantors to perform their obligations under, and consummate the transactions contemplated by, this Agreement, the Indenture and the Securities (each, a “
Material Adverse Effect
”). All of the issued and outstanding shares of
capital stock of each Significant Subsidiary of the Parent have been duly authorized and validly issued, are fully paid and nonassessable and are owned by the Parent, directly or through its subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance or claim. The Parent does not have any subsidiary not listed on Exhibit 21.1 to the Annual Report on Form
10-K
which is required to be so listed.
(r)
No Conflicts
. The Company’s and the Guarantors’ execution, delivery and performance of this Agreement, the Indenture, the
Notes and the Guarantees, as applicable (collectively, the “
Transaction Documents
”) and the consummation of the transactions contemplated hereby and thereby, by the Disclosure Package and by the Prospectus, including, without
limitation, the application of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus (i) have been duly authorized by all necessary corporate action and will not result in any violation of the
Charter Documents of the Company, the Guarantors or any of their Significant Subsidiaries, (ii) will not conflict with or constitute a breach of, or default or a Debt Repayment Triggering Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Guarantors or any of their Significant Subsidiaries pursuant to, or require the consent of any other party to, any indenture, mortgage, loan or
credit agreement, deed of trust, note, contract, franchise, lease or other agreement or instrument to which the Company, the Guarantors or any of their Significant Subsidiaries is a party or by which it or any of them may be bound or to which any of
the property or assets of the Company, the Guarantors or any of their Significant Subsidiaries is subject (each, an “
Existing Instrument
”), and (iii) will not result in any violation of any statute, law, rule, regulation,
judgment, order or decree applicable to the Company, the Guarantors or any of their Significant Subsidiaries, of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company, the Guarantors or any of
their Significant Subsidiaries or any of its or their properties, as applicable, except, with respect to clauses (ii) and (iii) only, for such defaults or violations as would not,
8
individually or in the aggregate, result in a Material Adverse Effect. As used herein, a “
Debt Repayment Triggering Event
” means any event or condition which gives, or with the
giving of notice or lapse of time or both would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) issued by the Company or the Guarantors, the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantors or any of their Significant Subsidiaries.
(s)
No Further Authorizations or Approvals Required
. No consent, approval, authorization or other order of, or registration or filing
with, any court or other governmental or regulatory authority or agency is required for the Company’s or the Guarantors’ execution, delivery or performance of this Agreement or consummation of the transactions contemplated hereby or
thereby, except (i) such as have been obtained or made by the Company or the Guarantors and are in full force and effect under the Securities Act or applicable state securities or blue sky laws and (ii) such as may be required by the
securities laws of the several states of the United States.
(t)
No Material Actions or Proceedings
. Except as disclosed in the
Disclosure Package and the Prospectus, there are no legal or governmental actions, suits or proceedings pending or, to the Parent’s knowledge, threatened (i) against or affecting the Company, the Guarantors or any of their respective
subsidiaries or (ii) which have as the subject thereof any officer or director of, or property owned or leased by, the Company, the Guarantors or any of their respective subsidiaries where any such action, suit or proceeding, if determined
adversely to the Company or such subsidiary, would, individually or in the aggregate, have a Material Adverse Effect.
(u)
Company and
the Guarantors Not an Investment Company
. Neither the Company nor any of the Guarantors is, and after receipt of payment for the Securities and the application of the proceeds thereof as contemplated under the caption “Use of Proceeds”
in the Disclosure Package and the Prospectus will be, required to register as an “investment company” within the meaning of the Investment Company Act.
(v)
No Price Stabilization or Manipulation
. Neither the Company nor any Guarantor has taken nor will take, directly or indirectly, any
action designed to or that would be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company or a Guarantor to facilitate the sale or resale of the Securities.
(w)
No Unlawful Contributions or Other Payments
. None of the Company, the Guarantors or any of their respective subsidiaries or, to the
best of the Parent’s knowledge, any director, officer, agent, employee or affiliate of the Company, a Guarantor or any of their respective subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a
violation by such persons of either (i) the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “
FCPA
”), including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or (ii) the U.K.
9
Bribery Act 2010 (the “
Bribery Act
”), and the Company, the Guarantors, their respective subsidiaries and, to the best of the Parent’s knowledge, their respective affiliates
have conducted their businesses in compliance with the FCPA and the Bribery Act and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(x)
No Conflict with Money Laundering Laws
. The operations of the Company, the Guarantors and their respective subsidiaries are
and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “
Money Laundering
Laws
”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company, the Guarantors or any of their respective subsidiaries with respect to the Money Laundering
Laws is pending or, to the best of the Parent’s knowledge, threatened.
(y)
No Conflict with OFAC Laws
. None of the Company,
the Guarantors, any of their respective subsidiaries or, to the knowledge of the Parent, any director, officer, agent, employee, affiliate or representative of the Company, the Guarantors or any of their respective subsidiaries is an individual or
entity (“
Person
”) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control
(“
OFAC
”), the United Nations Security Council (“
UNSC
”), the European Union, Her Majesty’s Treasury (“
HMT
”), or other relevant sanctions authority (collectively, “
Sanctions
”),
nor is the Company or a Guarantor located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or
otherwise make available such proceeds to any subsidiaries, joint venture partners or other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of
Sanctions, or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(z)
Sarbanes-Oxley Compliance
. There is and has been no failure on the part of the Parent and any of the Parent’s directors or
officers, in their capacities as such, to comply with any applicable provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “
Sarbanes-Oxley Act
”), including
Section 402 related to loans and Sections 302 and 906 related to certifications.
(aa)
Internal Controls and Procedures
.
The Parent maintains a system of internal accounting controls over financial reporting (as such term is defined in
Rule 13a-15(f)
under the Exchange Act) sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and
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appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement,
the Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, since the end of the Parent’s most recent audited fiscal year, there has been no material weakness or significant deficiencies in the Parent’s internal control over financial reporting
(whether or not remediated).
(bb)
Disclosure Controls and Procedures
. The Parent maintains disclosure controls and procedures (as
such term is defined in
Rule 13a-15(e)
under the Exchange Act) that comply with the requirements of the Exchange Act; and such disclosure controls and procedures have been designed to ensure that material
information relating to the Company, the Guarantors and their respective subsidiaries is made known to the Parent’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and
procedures are effective. The Company has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15(e) under the Exchange Act.
(cc)
No Immunity from Jurisdiction
. The Company, the Guarantors and each of their respective subsidiaries have no immunity from
jurisdiction of any court of (i) any jurisdiction in which they own or lease property or assets, or (ii) the United States or the State of New York or from any legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to themselves or their property and assets or this Agreement or the Indenture, or actions to enforce judgments in respect thereof.
(dd)
Submission to Jurisdiction
. Each of the Company and the Guarantors has validly, legally, effectively and irrevocably submitted to
the personal jurisdiction of any state or Federal court in the Borough of Manhattan, The City of New York, New York, and has validly, legally, effectively and irrevocably waived any objection to the venue of a proceeding in any such court.
Any certificate signed by an officer of the Company and delivered to the Representatives or to counsel for the Underwriters shall be deemed to
be a representation and warranty by the Parent and the Company to each Underwriter as to the matters set forth therein.
SECTION 2.
Purchase, Sale and Delivery of the Securities
.
(a)
The Securities
. The Company and the Guarantors agree to issue and sell to
the several Underwriters, severally and not jointly, all of the Securities upon the terms herein set forth. On the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set
forth, the Underwriters agree, severally and not jointly, to purchase from the Company and the Guarantors the aggregate principal amount of Securities set forth opposite their names on Schedule A hereto at a purchase price of 98.858% of the
principal amount of the Securities, payable on the Closing Date.
(b)
The Closing Date
. Delivery of certificates for the Securities
in global form to be purchased by the Underwriters and payment therefor shall be made at the offices of
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Shearman & Sterling LLP, 599 Lexington Avenue, New York, NY 10022 (or such other place as may be agreed to by the Company and the Representatives) at 9:00 a.m., New York City time,
on July 27, 2015, or such other time and date as the Underwriters and the Company shall mutually agree (the time and date of such closing are called the “
Closing Date
”).
(c)
Public Offering of the Securities
. The Representatives hereby advise the Company that the Underwriters intend to offer for sale to
the public, as described in the Disclosure Package and the Prospectus, their respective portions of the Securities as soon after the Execution Time as the Representatives, in their sole judgment, have determined is advisable and practicable.
(d)
Delivery of the Securities
. The Company shall deliver, or cause to be delivered, to the Representatives for the accounts of the
several Underwriters certificates for the Securities on the Closing Date, against the irrevocable release of a wire transfer of immediately available funds to the order of the Company at such bank account or accounts as the Company shall designate
to the Representatives for the amount of the purchase price therefor. The certificates for the Securities shall be registered in such names and denominations as the Representatives shall have requested at least two full business days prior to the
Closing Date and shall be made available for inspection on the business day preceding the Closing Date at a location in New York City, as the Representatives may designate.
SECTION 3.
Covenants of the Company and the Guarantors
.
Each of the Company and the Guarantors, jointly and severally, covenant and agree with each Underwriter as follows:
(a)
Compliance with Securities Regulations and Commission Requests
. The Company, subject to Section 3(b) hereof, will comply with
the requirements of Rule 430B of the Securities Act, and will promptly notify the Representatives, and confirm the notice in writing, of (i) the effectiveness during the Prospectus Delivery Period (as defined below) of any
post-effective
amendment to the Registration Statement or the filing of any supplement or amendment to the Preliminary Prospectus or the Prospectus, (ii) the receipt of any comments from the Commission during
the Prospectus Delivery Period, (iii) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or the Prospectus or for additional information and (iv) the
issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424. The Company will use its
reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b)
Filing of Amendments
. During such period beginning on the date of this Agreement and ending on the later of the Closing Date or
such date as, in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of the Securities by an Underwriter or dealer, including in circumstances where such
12
requirement may be satisfied pursuant to Rule 172 of the Securities Act (the “
Prospectus Delivery Period
”), the Company will give the Representatives notice of its intention
to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b) of the Securities Act), or any amendment, supplement or revision to the Disclosure Package or the Prospectus, whether pursuant to the
Securities Act, the Exchange Act or otherwise, will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to
which the Representatives or counsel for the Underwriters shall reasonably object.
(c)
Delivery of Registration Statements
. The
Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters. The Registration Statement and each amendment thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(d)
Delivery of Prospectuses
. The Company will deliver to each Underwriter, without charge, as many copies of the Preliminary
Prospectus as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter, without charge, during the Prospectus
Delivery Period, such number of copies of the Prospectus as such Underwriter may reasonably request. The Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e)
Continued Compliance with Securities Laws
. Each of the Parent and the Company will comply with the Securities Act and the Exchange
Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the Prospectus. If at any time during the Prospectus Delivery Period, any event
shall occur or condition shall exist as a result of which (i) the Registration Statement, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements therein not misleading, (ii) the Disclosure Package or the Prospectus, as applicable, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading, or (iii) if it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus in
order to comply with applicable law, the Company agrees to promptly prepare (subject to Section 3 hereof), file with the Commission and furnish at its own expense to the Underwriters, amendments or supplements to the Registration Statement, the
Disclosure Package or the Prospectus, as applicable, so that the statements in the Registration Statement, the Disclosure Package and the Prospectus, as applicable, as so amended or supplemented will not, in the case
13
of the Disclosure Package and the Prospectus, in the light of the circumstances under which they were made, be misleading or so that the Registration Statement, the Disclosure Package or the
Prospectus, as applicable, as amended or supplemented, will comply with all applicable law.
(f)
Blue Sky Compliance
. The Company
shall cooperate with the Representatives and counsel for the Underwriters to qualify or register the Securities for sale under (or obtain exemptions from qualification or registration under) the state securities or blue sky laws of those
jurisdictions designated by the Representatives, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Securities. The Company shall not be required
to qualify to transact business or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign business. The Company will
advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any
such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its reasonable best efforts to obtain the withdrawal thereof at the earliest possible moment.
(g)
Use of Proceeds
. The Company and the Guarantors shall apply the net proceeds from the sale of the Securities in the manner
described under the caption “Use of Proceeds” in the Preliminary Prospectus and the Prospectus.
(h)
Depositary
. The
Company and the Guarantors will cooperate with the Underwriters and use their best efforts to permit the Securities to be eligible for clearance and settlement through the facilities of the Depositary.
(i)
Periodic Reporting Obligations
. During the Prospectus Delivery Period, the Company or the Parent, as applicable, shall file, on a
timely basis, with the Commission all reports and documents required to be filed under Section 13 or 15 of the Exchange Act.
(j)
Agreement Not to Offer or Sell Additional Securities
. During the period commencing on the date hereof and ending on the Closing Date, the Company and the Guarantors will not, without the prior written consent of the Representatives (which
consent may be withheld at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of
Rule 16a-1(h)
under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any debt securities of the
Company and the Guarantors similar to the Securities or securities exchangeable for or convertible into debt securities similar to the Securities (other than as contemplated by this Agreement with respect to the Securities).
(k)
Final Term Sheet
. The Company will prepare a final term sheet containing only a description of the Securities, in a form approved
by the Underwriters and attached as Exhibit A hereto, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the “
Final Term Sheet
”). Any such
Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
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(l)
Permitted Free Writing Prospectuses
. Each of the Company and the Guarantors represents
that it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the
prior written consent of the Representatives shall be deemed to have been given in respect of any Issuer Free Writing Prospectuses included in Annex I to this Agreement. Any such free writing prospectus consented to or deemed to be consented to by
the Representatives is hereinafter referred to as a “
Permitted Free Writing Prospectus
.” Each of the Company and the Guarantors agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and record keeping. Each of the Company and the Guarantors consents to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus”
as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Securities or their offering, (ii) information permitted by Rule 134 under the Securities Act or
(iii) information that describes the final terms of the Securities or their offering and that is included in the Final Term Sheet of the Company contemplated in Section 3(k) hereof.
(m)
Registration Statement Renewal Deadline
. If immediately prior to the third anniversary (the “
Renewal Deadline
”) of
the initial effective date of the Registration Statement, any of the Securities remain unsold by the Underwriters, the Company and the Guarantors will prior to the Renewal Deadline file, if they have not already done so and are eligible to do so, a
new automatic shelf registration statement relating to the Securities, in a form reasonably satisfactory to the Representatives. If the Company and Guarantors are no longer eligible to file an automatic shelf registration statement, the Company and
the Guarantors will prior to the Renewal Deadline, if they have not already done so, file a new shelf registration statement relating to the Securities, in a form reasonably satisfactory to the Representatives, and will use their best efforts to
cause such registration statement to be declared effective within 60 days after the Renewal Deadline. The Company and Guarantors will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue
as contemplated in the expired registration statement relating to the Securities. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may
be.
(n)
Notice of Inability to Use Automatic Shelf Registration Statement Form
. If at any time during the Prospectus Delivery
Period, the Company or any Guarantor receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company and the Guarantors will
(i) promptly notify the Representatives, (ii) promptly file a new registration statement or
post-effective
amendment on the proper form relating to the Securities, in a form satisfactory to the
Representatives, (iii) use their best efforts to cause such registration statement or
post-effective
amendment to be declared effective and (iv) promptly notify the Representatives of such
effectiveness. The Company and the Guarantors will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in
15
the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company or a Guarantor has otherwise become ineligible. References herein to the Registration
Statement shall include such new registration statement or
post-effective
amendment, as the case may be.
(o)
Filing Fees
. The Company agrees to pay the required Commission filing fees relating to the Securities within the time required by
and in accordance with Rule 456(b)(1) and 457(r) of the Securities Act.
(p)
No Manipulation of Price
. The Company and the
Guarantors will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price
of any securities of the Company or the Guarantors to facilitate the sale or resale of the Securities.
The Representatives, on behalf of
the several Underwriters, may, in their sole discretion, waive in writing the performance by the Company or the Guarantors of any one or more of the foregoing covenants or extend the time for their performance.
SECTION 4.
Payment of Expenses.
The Company and the Guarantors, jointly and severally, agree to pay the following costs, fees and
expenses incurred in connection with the performance of their obligations hereunder and in connection with the transactions contemplated hereby: (i) all expenses incident to the issuance and delivery of the Securities (including all printing
costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Securities, (iii) all fees and expenses of the Company’s and the Guarantors’ counsel, independent public or
certified public accountants and other advisors to the Company and the Guarantors, (iv) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement (including
financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free Writing Prospectus, the Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto, and this Agreement, the Indenture and
the Securities, (v) all filing fees, attorneys’ fees and expenses incurred by the Company, the Guarantors or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of)
all or any part of the Securities for offer and sale under the state securities or blue sky laws, and, if requested by the Representatives, preparing a “Blue Sky Survey” or memorandum, and any supplements thereto, advising the Underwriters
of such qualifications, registrations and exemptions, (vi) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review, if any, by the FINRA of the terms of the sale of
the Securities, (vii) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (viii) any fees payable in connection with the rating of the
Securities with the ratings agencies, (ix) all fees and expenses (including reasonable fees and expenses of counsel) of the Company and the Guarantors in connection with approval of the Securities by the Depositary for “book-entry”
transfer and (x) all other fees, costs and expenses incurred in connection with the performance of their obligations hereunder for which provision is not otherwise made in this Section 4. Except as provided in this Section 4 and
Sections 6, 8 and 9 hereof, the Underwriters shall pay their own expenses, including the fees and disbursements of their counsel.
16
SECTION 5.
Conditions of the Obligations of the Underwriters.
The obligations of the
several Underwriters to purchase and pay for the Securities as provided herein on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantors set forth in Section 1
hereof as of each Representation Date and to the timely performance by each of the Company and the Guarantors of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a)
Effectiveness of Registration Statement
. The Registration Statement shall have become effective under the Securities Act and no
stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act and no proceedings for that purpose shall have been instituted or be pending or, to the best knowledge of the Parent, threatened by
the Commission and the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form. The Preliminary Prospectus and the
Prospectus shall have been filed with the Commission in accordance with Rule 424(b) (or any required
post-effective
amendment providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A).
(b)
Accountants’ Comfort Letter
. On the date hereof, the Representatives
shall have received from KPMG, independent registered public accountants for the Parent, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives with respect to the audited and
unaudited financial statements and certain financial information contained in the Registration Statement, the Disclosure Package and the Prospectus.
(c)
Bring-down
Comfort Letter
. On the Closing Date, the Representatives shall have received
from KPMG, independent registered public accountants for the Parent, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant
to subsection (b) of this Section 5, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date.
(d)
No Material Adverse Change or Ratings Agency Change
. For the period from and after the date of this Agreement and prior to the
Closing Date:
(i) in the judgment of the Representatives there shall not have occurred any Material Adverse Change that
makes it impracticable or inadvisable to proceed with the offer, sale or delivery of the Notes;
(ii) there shall not have
been any change or decrease specified in the letter or letters referred to in paragraph (c) of this Section 5 which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the Prospectus; and
17
(iii) there shall not have occurred any downgrading in or withdrawal of, nor
shall any notice have been given of any intended or potential downgrading or withdrawal or of any review for a possible change that does not indicate the direction of the possible change, the rating accorded any securities of the Company, the
Guarantors or any of their respective subsidiaries by any “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act.
(e)
Authorizations and Approvals
. The Company and the Guarantors shall have obtained all consents, approvals, authorizations and orders
of, and shall have duly made all registrations, qualifications and filings with, any court or regulatory authority or other governmental agency or instrumentality required in connection with the issuance and sale of the Securities and the execution,
delivery and performance of this Agreement.
(f)
Opinion of Counsel for the Company and the Guarantors
. On the Closing Date, the
Representatives shall have received (i) an opinion of White & Case LLP, outside counsel for the Company and certain Guarantors, dated as of such Closing Date, in a form reasonably acceptable to the Representatives; (ii) an
opinion of Husch Blackwell LLP, Missouri and Illinois counsel for the Company and certain Guarantors, dated as of such Closing Date, in a form reasonably acceptable to the Representatives; and (iii) an in-house legal opinion from William J.
Wochner, Senior Vice-President and Chief Legal Officer of the Parent, dated as of such Closing Date, in a form reasonably acceptable to the Representatives.
(g)
Opinion of Counsel for the Underwriters
. On the Closing Date, the Representatives shall have received an opinion of
Shearman & Sterling LLP, counsel for the Underwriters, dated as of such Closing Date, with respect to such matters as may be reasonably requested by the Underwriters.
(h)
Officer’s Certificate
. On the Closing Date, the Representatives shall have received a written certificate executed by an
executive officer of the Company or the Parent, dated as of such Closing Date, to the effect that:
(i) the Company and the
Guarantors have received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose have been instituted or, to the best of the Parent’s knowledge, threatened by the Commission;
(ii) the Company and the Guarantors have not received from the Commission any notice pursuant to Rule 401(g)(2) of the
Securities Act objecting to use of the automatic shelf registration statement form;
(iii) the representations, warranties
and covenants of the Company and the Guarantors set forth in Section 1 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such Closing Date; and
(iv) each of the Company and the Guarantors has complied with all the agreements hereunder and satisfied all the conditions on
its part to be performed or satisfied hereunder at or prior to such Closing Date.
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(i) The Indenture, the Notes and the Guarantees.
As of the Closing Date, the Company, the
Guarantors and the Trustee shall have entered into the Indenture, the Notes and the Guarantees (as applicable) and the Underwriters shall have received executed copies thereof.
(j)
Additional Documents
. On or before the Closing Date, the Representatives and counsel for the Underwriters shall have received such
information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and
warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this
Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the
part of any party to any other party, except that Sections 4, 6, 8, 9, 17 and 18 hereof shall at all times be effective and shall survive such termination.
SECTION 6.
Reimbursement of Underwriters’ Expenses
. If this Agreement is terminated by the Representatives pursuant to
Section 5, 10 or 11 hereof, or if the sale to the Underwriters of the Securities on the Closing Date is not consummated because of any refusal, inability or failure on the part of the Company or any Guarantor to perform any agreement herein or
to comply with any provision hereof, the Company and the Guarantors, jointly and severally, agree to reimburse the Underwriters, severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by the Underwriters in
connection with the proposed purchase and the offering and sale of the Securities, including but not limited to fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.
SECTION 7.
Effectiveness of this Agreement
. This Agreement shall not become effective until the execution of this Agreement by the
parties hereto.
SECTION 8.
Indemnification
.
(a)
Indemnification of the Underwriters
. The Company and the Guarantors, jointly and severally, agree to indemnify and hold harmless
each Underwriter, its directors, officers, employees, affiliates, and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act (collectively, the “
Underwriter Indemnified
Parties
” and each, an “
Underwriter Indemnified Party
”) against any loss, claim, damage, liability or expense, as incurred (collectively, “
Losses
” and each, a “
Loss
”), to which such
Underwriter Indemnified Party may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Company), insofar as such Loss (or actions in respect thereof as contemplated below) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto) or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or
alleged untrue statement of a
19
material fact contained in any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and to reimburse each Underwriter Indemnified Party for
any and all expenses (including the reasonable fees and disbursements of counsel chosen by the Representatives) as such expenses are reasonably incurred by such Underwriter Indemnified Party in connection with investigating, defending, settling,
compromising or paying any such Loss or action;
provided
,
however
, that the foregoing indemnity agreement shall not apply to any Loss to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use in any Company Additional Written
Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto). The indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that the
Company or the Guarantors may otherwise have.
(b)
Indemnification of the Company, the Guarantors and their Directors and Officers
.
Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantors, each of their respective directors, each of their respective officers who signed the Registration Statement and each person, if any, who
controls the Company and the Guarantors within the meaning of the Securities Act or the Exchange Act (collectively, the “
Company and Guarantors Indemnified Parties
” and each, a “
Company and Guarantor Indemnified
Party
”), against any Loss to which any Company and Guarantor Indemnified Party may become subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or at common law or otherwise (including
in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as such Loss (or actions in respect thereof as contemplated below) arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein not misleading, or (ii) any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and to reimburse
any Company and Guarantor Indemnified Party for any and all expense (including the reasonable fees and disbursements of counsel chosen by the Company) as such expenses are reasonably incurred by such Company and Guarantor Indemnified Party, in
connection with investigating, defending, settling, compromising or paying any such Losses or action. The Company and the Guarantors hereby acknowledge that the only information furnished to the Company by any Underwriter through the Representatives
expressly
20
for use in the Registration Statement, any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) are the statements set forth in the first sentence of the third paragraph, the third sentence of the fifth paragraph and the sixth and seventh paragraphs under the caption “Underwriting” in the Preliminary Prospectus
and the Prospectus. The indemnity agreement set forth in this Section 8(b) shall be in addition to any liabilities that each Underwriter may otherwise have to the Company and Guarantors Indemnified Parties.
(c)
Notifications and Other Indemnification Procedures
. Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof, but the
failure to so notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party for contribution or otherwise than under the indemnity agreement contained in this Section 8 or to the extent it is
not prejudiced as a proximate result of such failure. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled
to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, such indemnified party shall have the right to employ its own counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party, unless: (i) the employment of such counsel has been specifically authorized in writing by the indemnifying party; (ii) the indemnifying
party has failed promptly to assume the defense and employ counsel reasonably satisfactory to the indemnified party; or (iii) the named parties to any such action (including any impleaded parties) include both such indemnified party and the
indemnifying party or any affiliate of the indemnifying party, and such indemnified party shall have reasonably concluded that either (x) there may be one or more legal defenses available to it which are different from or additional to those
available to the indemnifying party or such affiliate of the indemnifying party or (y) a conflict may exist between such indemnified party and the indemnifying party or such affiliate of the indemnifying party (it being understood, however,
that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to a single firm of local counsel) for all such indemnified parties, which firm shall be designated in writing by the Representatives (in the case of counsel representing any Initial
Purchaser Indemnified Party) and that all such reasonable fees and expenses shall be reimbursed as they are incurred). Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election so to
assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence, in which case the reasonable fees and expenses of counsel shall
be at the expense of the indemnifying party.
21
(d)
Settlements
. The indemnifying party under this Section 8 shall not be liable for
any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any Loss by reason of
such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by this
Section 8, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have
been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or
proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
SECTION 9.
Contribution
. If the indemnification provided for in Section 8 is for any reason held to be unavailable to or otherwise
insufficient to hold harmless an indemnified party in respect of any Losses referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any Losses
referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such Losses, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company and the Guarantors, and the total underwriting discount received by the Underwriters, in each
case as set forth on the front cover page of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on such cover page. The relative fault of the Company and the Guarantors, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied
by the Company or a Guarantor, on the one hand, or the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set
forth in Section 8, any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim.
22
The Company, the Guarantors and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable
considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the discount received by such Underwriter in connection with the Securities purchased by it. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 9 are several, and not joint, in proportion to their
respective purchase commitments as set forth opposite their names in Schedule A. For purposes of this Section 9, each Underwriter Indemnified Party (other than such Underwriter) shall have the same rights to contribution as such Underwriter,
and each Company and Guarantor Indemnified Party (other than the Company and the Guarantors, as applicable) shall have the same rights to contribution as the Company and the Guarantors.
SECTION 10.
Default of One or More of the Several Underwriters
. If any one or more of the several Underwriters shall fail or refuse to
purchase Securities that it or they have agreed to purchase hereunder on the Closing Date, and the aggregate principal amount of Securities, which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed
10% of the aggregate principal amount of the Securities to be purchased on such date, the other Underwriters shall be obligated, severally, in the proportion to the aggregate principal amounts of such Securities set forth opposite their respective
names on Schedule A bears to the aggregate principal amount of such Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the Representatives with the consent of the
non-defaulting Underwriters, to purchase such Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on the Closing Date. If any one or more of the Underwriters shall fail or refuse to purchase such
Securities and the aggregate principal amount of such Securities with respect to which such default occurs exceeds 10% of the aggregate principal amount of Securities to be purchased on the Closing Date, and arrangements satisfactory to the
Representatives and the Company for the purchase of such Securities are not made within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party except that the provisions of Sections 4, 6,
8, 9, 17 and 18 hereof shall at all times be effective and shall survive such termination. In any such case, either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days in
order that the required changes, if any, to the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter
under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
23
SECTION 11.
Termination of this Agreement
. Prior to the Closing Date, this Agreement may
be terminated by the Representatives by notice given to the Company if at any time (i) trading or quotation in any of the Company’s or the Parent’s securities shall have been suspended or limited by the Commission or by any exchange
or in any over-the-counter market, or trading in securities generally on either the New York Stock Exchange, the American Stock Exchange, the Nasdaq Global Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchanges by the Commission or the FINRA; (ii) a general banking moratorium shall have been declared
by any of federal or New York authorities; (iii) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity involving the United States, or any change in the United States or
international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Representatives is
material and adverse and makes it impracticable or inadvisable to market the Securities in the manner and on the terms described in the Disclosure Package or the Prospectus or to enforce contracts for the sale of securities; (iv) in the
judgment of the Representatives there shall have occurred any Material Adverse Change; or (v) there shall have occurred a material disruption in commercial banking or securities settlement or clearance services in the United States. Any
termination pursuant to this Section 11 shall be without liability of any party to any other party except as provided in Sections 4 and 6 hereof, and provided further that Sections 4, 6, 8, 9, 17 and 18 hereof shall survive such
termination and remain in full force and effect.
SECTION 12.
No Fiduciary Duty.
The Company and the Guarantors acknowledge and
agree that: (i) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions, is an
arm’s-length
commercial transaction between the Company and the Guarantors, on the one hand, and the several Underwriters, on the other hand, and each of the Company and the Guarantors is capable of
evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such
transaction each Underwriter is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary of the Company, the Guarantors or their respective affiliates, stockholders, creditors or employees or any other party;
(iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Company or the Guarantors with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective
of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company or the Guarantors with respect to the offering contemplated hereby except the obligations expressly
set forth in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and the Guarantors and that the several
Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company and the Guarantors have consulted their own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate.
24
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company, the Guarantors and the several Underwriters with respect to the subject matter hereof. Each of the Company and the Guarantors hereby waives and releases, to the fullest extent permitted by law, any claims that it may have
against the several Underwriters with respect to any breach or alleged breach of agency or fiduciary duty.
SECTION 13.
Representations
and Indemnities to Survive Delivery
. The respective indemnities, agreements, representations, warranties and other statements of the Company, of the Guarantors, of the Company’s officers and of the several Underwriters set forth in or made
pursuant to this Agreement (i) will remain operative and in full force and effect, regardless of any (A) investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the officers or employees of any
Underwriter, or any person controlling the Underwriters, the Company, the Guarantors, the respective officers or employees of the Company and the Guarantors, or any person controlling the Company and the Guarantors, as the case may be or
(B) acceptance of the Securities and payment for them hereunder and (ii) will survive delivery of and payment for the Securities sold hereunder and any termination of this Agreement.
SECTION 14.
Notices
. All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed
to the parties hereto as follows:
If to the Representatives:
Citigroup Global Markets Inc.
388 Greenwich Street
New York,
NY 10013
Facsimile: (646) 291-1469
Attention: General Counsel
25
and
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
50 Rockefeller Plaza
NY1-050-12-01
New York,
NY 10020
Facsimile: (646) 855-5958
Attention: High Grade Transaction Management/Legal
and
Morgan
Stanley & Co. LLC
1585 Broadway
New York, NY 10036
Phone:
(212) 761-6691
Facsimile: (212) 507-8999
Attention: Investment Banking Division
with a copy to:
Shearman & Sterling LLP
599 Lexington Avenue
New York,
NY 10022
Facsimile: (646) 848-7895
Attention: Robert Treuhold, Esq.
If to the Company:
The Kansas
City Southern Railway Company
427 West 12th Street
Kansas City, MO 64105
Facsimile: (816) 983-1198
Attention: Michael W. Cline, Treasurer
with a copy to:
White & Case LLP
1155 Avenue of the Americas
New York, NY 10036
Facsimile:
(212) 354-8113
Attention: Gary Kashar, Esq.
Any party hereto may change the address or facsimile number for receipt of communications by giving written notice to the others.
26
SECTION 15.
Successors.
This Agreement will inure to the benefit of and be binding upon
the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and to the benefit of the indemnified parties referred to in Sections 8 and 9 hereof, and in each case their respective successors, and no other
person will have any right or obligation hereunder. The term “successors” shall not include any purchaser of the Securities as such from any of the Underwriters merely by reason of such purchase.
SECTION 16.
Partial Unenforceability.
The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made
such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
SECTION 17.
Governing Law
Provisions.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE.
(a)
Consent to Jurisdiction
. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby (“
Related Proceedings
”) may be instituted in the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan, or the courts of the State of New York in each
case located in the City and County of New York, Borough of Manhattan (collectively, the “
Specified Courts
”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the
enforcement of a judgment of any such court (a “
Related Judgment
”), as to which such jurisdiction is non-exclusive) of the Specified Courts in any Related Proceeding. Service of any process, summons, notice or document by mail
to such party’s address set forth above shall be effective service of process for any Related Proceeding brought in any Specified Court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action
or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such Related Proceeding brought in any such court has been brought in an inconvenient forum.
SECTION 18.
Trial by Jury
. THE COMPANY AND THE GUARANTORS (ON THEIR BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF
THEIR STOCKHOLDERS AND AFFILIATES) AND EACH OF THE UNDERWRITERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 19.
General Provisions
. This Agreement may be executed in two or more counterparts,
each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by telecopier, facsimile or other
electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof. This
27
Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the
condition is meant to benefit. The Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during
negotiations regarding the provisions hereof, including, without limitation, the indemnification provisions of Section 8 and the contribution provisions of Section 9 hereof, and is fully informed regarding said provisions. Each of the
parties hereto further acknowledges that the provisions of Sections 8 and 9 hereof fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate
disclosure has been made in the Registration Statement, the Disclosure Package and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act.
[Remainder of page intentionally left blank]
28
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
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Very truly yours,
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THE KANSAS CITY SOUTHERN RAILWAY COMPANY, as the Company
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By:
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/s/ Michael W. Cline
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Name:
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Michael W. Cline
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Title:
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Vice President & Treasurer
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KANSAS CITY SOUTHERN, as Guarantor and Parent
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By
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/s/ Michael W. Upchurch
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Name:
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Michael W. Upchurch
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Title:
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Executive Vice President and Chief Financial Officer
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GATEWAY EASTERN RAILWAY COMPANY, as Guarantor
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By
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/s/ Michael W. Cline
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Name:
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Michael W. Cline
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Title:
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Vice President and Treasurer
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[
signature page
to Underwriting Agreement
]
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SOUTHERN DEVELOPMENT COMPANY, as Guarantor
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By
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/s/ Michael W. Upchurch
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Name:
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Michael W. Upchurch
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Title:
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Vice President, Chief Financial Officer and Treasurer
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THE KANSAS CITY NORTHERN RAILWAY COMPANY, as Guarantor
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By
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/s/ Michael W. Cline
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Name:
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Michael W. Cline
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Title:
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Vice President and Treasurer
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TRANS-SERVE, INC., as Guarantor
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By
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/s/ Michael W. Cline
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Name:
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Michael W. Cline
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Title:
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Vice President and Treasurer
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KCS HOLDINGS I, INC., as Guarantor
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By
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/s/ Michael W. Cline
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Name:
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Michael W. Cline
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Title:
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Vice President and Treasurer
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KCS VENTURES I, INC., as Guarantor
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By
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/s/ Michael W. Cline
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Name:
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Michael W. Cline
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Title:
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Vice President and Treasurer
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[
signature page
to Underwriting Agreement
]
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SOUTHERN INDUSTRIAL SERVICES, INC., as Guarantor
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By
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/s/ Michael W. Upchurch
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Name:
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Michael W. Upchurch
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Title:
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Vice President, Chief Financial Officer and Treasurer
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VEALS, INC., as Guarantor
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By
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/s/ Michael W. Upchurch
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Name:
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Michael W. Upchurch
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Title:
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Vice President, Chief Financial Officer and Treasurer
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PABTEX, INC., as Guarantor
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By
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/s/ Michael W. Upchurch
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Name:
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Michael W. Upchurch
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Title:
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Vice President, Chief Financial Officer and Treasurer
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[
signature page
to Underwriting Agreement
]
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives as
of the date first above written.
CITIGROUP GLOBAL MARKETS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO.
LLC
Acting as Representatives of the
several Underwriters named in
the attached Schedule A.
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Citigroup Global Markets Inc.
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By:
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/s/ Brian D. Bednarski
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Name:
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Brian D. Bednarski
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Title:
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Managing Director
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Merrill Lynch, Pierce, Fenner & Smith
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Incorporated
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By:
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/s/ Jay Johnston
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Name:
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Jay Johnston
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Title:
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Managing Director
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Morgan Stanley & Co. LLC
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By:
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/s/ Yurij Slyz
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Name:
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Yurij Slyz
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Title:
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Executive Director
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[
signature page
to Underwriting Agreement
]
SCHEDULE A
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Underwriters
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Aggregate
Principal
Amount of
Securities to be
Purchased
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Citigroup Global Markets Inc.
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$
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125,000,000.00
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Merrill Lynch, Pierce, Fenner & Smith
Incorporated
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$
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125,000,000.00
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Morgan Stanley & Co. LLC
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$
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125,000,000.00
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J.P. Morgan Securities LLC
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$
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43,750,000.00
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Wells Fargo Securities, LLC
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$
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43,750,000.00
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Scotia Capital (USA) Inc.
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$
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18,750,000.00
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SunTrust Robinson Humphrey, Inc.
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$
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18,750,000.00
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Total
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$
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500,000,000.00
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Schedule A-1
SCHEDULE B
Guarantors
Kansas City Southern
Gateway Eastern Railway Company
Southern Development
Company
The Kansas City Northern Railway Company
Trans-Serve, Inc.
KCS Holdings I, Inc.
KCS Ventures I, Inc.
Southern Industrial Services, Inc.
Veals, Inc.
Pabtex, Inc.
Schedule B-1
ANNEX I
Issuer Free Writing Prospectuses
Final
Term Sheet dated July 22, 2015
Annex I-1
ANNEX II
Company Additional Written Communication
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1.
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Electronic (Netroadshow) road show of the Company relating to the offering of the Securities dated July 22, 2015.
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Annex II-2
EXHIBIT A
[
FINAL TERM SHEET
]
Exhibit A-1
Exhibit 4.1
EXECUTION VERSION
INDENTURE
among
THE KANSAS
CITY SOUTHERN RAILWAY COMPANY
as the Issuer
EACH OF THE GUARANTORS PARTY HERETO
and
U.S. BANK NATIONAL
ASSOCIATION
as Trustee
Dated July 27, 2015
Table of Contents
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Page
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
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1
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Section 1.01
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Definitions
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1
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Section 1.02
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Other Definitions
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5
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Section 1.03
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Incorporation by Reference of TIA
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5
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Section 1.04
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Rules of Construction
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5
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ARTICLE II THE SECURITIES
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6
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Section 2.01
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Form and Dating
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6
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Section 2.02
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Execution and Authentication
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6
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Section 2.03
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Amount Unlimited; Issuable in Series
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8
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Section 2.04
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Denomination and Date of Securities; Payments of Interest
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9
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Section 2.05
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Registrar and Paying Agent
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10
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Section 2.06
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Paying Agent to Hold Money in Trust
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10
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Section 2.07
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Holder Lists
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11
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Section 2.08
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Transfer and Exchange
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11
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Section 2.09
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Replacement Securities
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13
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Section 2.10
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Outstanding Securities
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14
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Section 2.11
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Temporary Securities
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14
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Section 2.12
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Cancellation
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15
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Section 2.13
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CUSIP Numbers
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15
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Section 2.14
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Series May Include Tranches
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15
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Section 2.15
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Defaulted Interest
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15
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ARTICLE III REDEMPTION
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16
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Section 3.01
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Applicability of Article
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16
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Section 3.02
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Selection of Securities to Be Redeemed
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16
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Section 3.03
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Notice of Redemption
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16
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Section 3.04
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Effect of Notice of Redemption
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17
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Section 3.05
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Deposit of Redemption Price
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17
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Section 3.06
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Payment of Securities Called for Redemption
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17
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Section 3.07
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Securities Redeemed in Part
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18
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Section 3.08
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Mandatory and Optional Sinking Funds
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18
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ARTICLE IV COVENANTS
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18
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Section 4.01
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Payment of Securities
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19
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Section 4.02
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Maintenance of Office or Agency
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19
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Section 4.03
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Notice of Defaults
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19
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Section 4.04
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Statement as to Compliance
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19
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Section 4.05
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Holders’ Lists
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19
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ARTICLE V SUCCESSORS
|
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20
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Section 5.01
|
|
Merger, Consolidation or Sale of Assets
|
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20
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Section 5.02
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Successor Substituted
|
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20
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ARTICLE VI DEFAULTS AND REMEDIES
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20
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Section 6.01
|
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Events of Default
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20
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Page
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Section 6.02
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Acceleration
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21
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Section 6.03
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Other Remedies
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21
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Section 6.04
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Waiver of Past Defaults
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22
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Section 6.05
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Control by Majority
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22
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Section 6.06
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Limitations on Suits
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22
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|
Section 6.07
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Rights of Holders to Receive Payment
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22
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Section 6.08
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Collection Suit by Trustee
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23
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Section 6.09
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Trustee May File Proofs of Claim
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23
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Section 6.10
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Priorities
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23
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Section 6.11
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Undertaking for Costs
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23
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Section 6.12
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Restoration of Rights and Remedies
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24
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Section 6.13
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|
Rights and Remedies Cumulative
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24
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Section 6.14
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Delay or Omission Not Waiver
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24
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|
ARTICLE VII TRUSTEE
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24
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Section 7.01
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General
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24
|
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Section 7.02
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Certain Rights of Trustee
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24
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Section 7.03
|
|
Individual Rights of Trustee
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|
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25
|
|
|
Section 7.04
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|
Trustee’s Disclaimer
|
|
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25
|
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|
Section 7.05
|
|
Notice of Defaults
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26
|
|
|
Section 7.06
|
|
Reports by Trustee to Holders
|
|
|
26
|
|
|
Section 7.07
|
|
Compensation and Indemnity
|
|
|
26
|
|
|
Section 7.08
|
|
Replacement of Trustee
|
|
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27
|
|
|
Section 7.09
|
|
Acceptance of Appointment by Successor
|
|
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28
|
|
|
Section 7.10
|
|
Successor Trustee by Merger, etc.
|
|
|
28
|
|
|
Section 7.11
|
|
Eligibility
|
|
|
28
|
|
|
Section 7.12
|
|
Money Held in Trust
|
|
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28
|
|
|
|
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|
ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE
|
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28
|
|
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Section 8.01
|
|
Option to Effect Legal Defeasance or Covenant Defeasance
|
|
|
28
|
|
|
Section 8.02
|
|
Legal Defeasance and Discharge
|
|
|
28
|
|
|
Section 8.03
|
|
Covenant Defeasance
|
|
|
29
|
|
|
Section 8.04
|
|
Conditions to Legal or Covenant Defeasance
|
|
|
30
|
|
|
Section 8.05
|
|
Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions
|
|
|
31
|
|
|
Section 8.06
|
|
Repayment to Company
|
|
|
31
|
|
|
Section 8.07
|
|
Reinstatement
|
|
|
31
|
|
|
|
|
|
ARTICLE IX NOTE GUARANTEES
|
|
|
32
|
|
|
|
|
|
|
Section 9.01
|
|
Note Guarantee
|
|
|
32
|
|
|
Section 9.02
|
|
Limitation on Guarantor Liability
|
|
|
33
|
|
|
Section 9.03
|
|
Execution and Delivery of Guarantee
|
|
|
33
|
|
|
Section 9.04
|
|
Releases
|
|
|
34
|
|
|
|
|
|
ARTICLE X SATISFACTION AND DISCHARGE
|
|
|
34
|
|
|
|
|
|
|
Section 10.01
|
|
Satisfaction and Discharge
|
|
|
34
|
|
|
Section 10.02
|
|
Application of Trust Money
|
|
|
35
|
|
|
|
|
|
ARTICLE XI AMENDMENTS, SUPPLEMENTS AND WAIVERS
|
|
|
35
|
|
ii
|
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|
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|
|
|
|
|
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|
Page
|
|
|
|
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|
|
Section 11.01
|
|
Without Consent of Holders
|
|
|
35
|
|
|
Section 11.02
|
|
With Consent of Holders
|
|
|
36
|
|
|
Section 11.03
|
|
Revocation and Effect of Consent
|
|
|
37
|
|
|
Section 11.04
|
|
Notation on or Exchange of Securities
|
|
|
37
|
|
|
Section 11.05
|
|
Trustee to Sign Amendments, Etc.
|
|
|
37
|
|
|
Section 11.06
|
|
Conformity with TIA
|
|
|
38
|
|
|
|
|
|
ARTICLE XII MISCELLANEOUS
|
|
|
38
|
|
|
|
|
|
|
Section 12.01
|
|
TIA Controls
|
|
|
38
|
|
|
Section 12.02
|
|
Notices
|
|
|
38
|
|
|
Section 12.03
|
|
Certificate and Opinion as to Conditions Precedent
|
|
|
39
|
|
|
Section 12.04
|
|
Statements Required in Certificate or Opinion
|
|
|
39
|
|
|
Section 12.05
|
|
Rules by Trustee and Agents
|
|
|
39
|
|
|
Section 12.06
|
|
Governing Law
|
|
|
39
|
|
|
Section 12.07
|
|
No Adverse Interpretation of Other Agreements
|
|
|
39
|
|
|
Section 12.08
|
|
No Personal Liability of Incorporators, Stockholders, Officers, Directors, or Employees
|
|
|
40
|
|
|
Section 12.09
|
|
Successors
|
|
|
40
|
|
|
Section 12.10
|
|
Evidence of Ownership
|
|
|
40
|
|
|
Section 12.11
|
|
Counterpart Originals
|
|
|
40
|
|
|
Section 12.12
|
|
Severability
|
|
|
41
|
|
|
Section 12.13
|
|
Table of Contents, Headings, Etc.
|
|
|
41
|
|
iii
Cross-Reference Table*
|
|
|
|
|
Trust Indenture Act Section
|
|
Indenture Section
|
|
310(a)(1)
|
|
7.11
|
|
310(a)(2)
|
|
7.11
|
|
310(a)(5)
|
|
7.11
|
|
310(b)
|
|
7.03; 7.08
|
|
311
|
|
7.03
|
|
312(a)
|
|
2.07; 4.05
|
|
313(a)
|
|
7.06
|
|
313(b)
|
|
7.06
|
|
313(c)
|
|
7.05; 7.06
|
|
315(a)
|
|
7.02
|
|
315(b)
|
|
7.02
|
|
315(c)
|
|
7.02
|
|
315(d)
|
|
7.02
|
|
316(a)
|
|
6.06; 6.08
|
|
318(c)
|
|
12.01
|
|
*
|
This Cross-Reference Table is not part of the Indenture.
|
iv
INDENTURE, dated as of July 27, 2015, among The Kansas City Southern Railway Company, the
Guarantors (as defined below) and U.S. Bank National Association, as trustee.
The execution and delivery of this Indenture has been duly
authorized by the Issuer and each of the Guarantors.
The Issuer, the Guarantors and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders (as defined below) from time to time of the Securities (as defined below):
ARTICLE I
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section 1.01
Definitions
.
For all purposes of this Indenture and of any indenture supplemental hereto, the following terms shall have the respective meanings set forth
in this Section.
“
Affiliate
” means, as applied to any Person, any other Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with such Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under
common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
“
Agent
” means any Registrar, co-Registrar, Paying Agent, additional Paying Agent, Calculation
Agent or Authenticating Agent.
“
Beneficial Owner
” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5
under the Exchange Act. The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding meaning.
“
Board of Directors
” means:
(a) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on
behalf of such board;
(b) with respect to a partnership, the board of directors of the general partner of the partnership;
(c) with respect to a limited liability company, the managing member or members or any controlling committee of managing
members thereof; and
(d) with respect to any other Person, the board or committee of such Person serving a similar
function.
“
Board Resolution
” means one or more resolutions of the Board of Directors certified by the secretary or an
assistant secretary of the Issuer to have been duly adopted and to be in full force and effect on the date of certification, and delivered to the Trustee.
“
Business Day
” means any day other than a Legal Holiday.
“
Calculation Agent
” means a financial institution appointed by the Issuer to calculate the interest rate payable in respect
of each interest period on any floating rate notes issued pursuant to this Indenture.
“
Capital Stock
” means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether voting or non-voting) in the equity of such Person, whether now outstanding or issued after the Issue Date.
“
Commission
” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act
or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the TIA, then the body performing such duties at such time.
“
Company Order
” means a written order signed in the name of the Issuer by one Officer, which must be the Issuer’s
principal executive officer, principal financial officer, principal accounting officer or treasurer.
“
Corporate Trust
Office
” means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally administered, which on the date hereof is at 225 Asylum Street, 23
rd
Floor, Hartford, Connecticut 06103.
“
Credit Agreement
” means the
second amended and restated credit agreement dated as of November 21, 2012, among the Issuer, Parent, the guarantors, lenders thereunder and the other parties thereto, as amended or supplemented.
“
Debt
” means indebtedness for money borrowed or indebtedness evidenced by a bond, note, debenture or other evidence of
indebtedness, including the Credit Agreement or any refinancing thereof.
“
Default
” means any event that is, or after
notice or passage of time or both would be, an Event of Default.
“
Depositary
” means, with respect to the Securities of
any series issuable or issued in whole or in part in the form of one or more Registered Global Securities, DTC or another clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities, and if at any
time there is more than one such Person, “Depositary” as used with respect to the Securities of any series shall mean the Depositary with respect to the Securities of such series.
“
Domestic Subsidiary
” means a Subsidiary of Parent (other than the Issuer) that was formed under the laws of the United
States or any state of the United States or the District of Columbia.
“
DTC
” means The Depository Trust Company.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended.
“
Fitch
” means Fitch Ratings, Inc.
“
Government Securities
” means direct obligations of, obligations fully and unconditionally guaranteed by, or participation in
pools consisting solely of (or repurchase transactions relating to) obligations of or obligations fully and unconditionally guaranteed by the United States of America for the payment of which guarantee or obligations the full faith and credit of the
United States of America is pledged and which are not callable or redeemable at the option of the Issuer thereof.
“
Guarantee
” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Debt of any
other Person. The term “guarantee” used as a verb has a corresponding meaning.
“
Guarantors
” means, with
respect to any series of Securities issued under this Indenture, each Person that executes a Note Guarantee of such Securities, and their respective successors and assigns, in each case, until such Note Guarantee of such Person has been released in
accordance with the provisions of this Indenture.
2
“
Holder
” means the registered holder of any Security on the Security Register
with respect to Registered Securities and the bearer of any Unregistered Security or any coupon appertaining thereto, as the case may be.
“
Indenture
” means this Indenture as originally executed and delivered or as it may be amended or supplemented from time to
time by one or more indentures supplemental to this Indenture entered into pursuant to the applicable provisions of this Indenture and shall include the forms and terms of the Securities of each series established as contemplated pursuant to
Sections 2.01
and
2.03
hereof.
“
Indirect Participant
” means a Person who holds a beneficial interest
in a Registered Global Security through a Participant.
“
Issuer
” means The Kansas City Southern Railway Company, a
Missouri corporation, and its successors.
“
KCSM
” means Kansas City Southern de México, S. A. de C.V., a sociedad
anónima de capital variable organized under the laws of the United Mexican States.
“
Legal Holiday
” means a
Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized by law, regulation or executive order to remain closed.
“
Moody’s
” means Moody’s Investors Services, Inc., or any successor thereto.
“
Note Guarantee
” means, with respect to any series of Securities issued under this Indenture, the Guarantee by a Guarantor of
such Securities.
“
Officer
” means the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer,
the President, any Vice President, the Treasurer or any Assistant Treasurer or the Secretary or any Assistant Secretary of the Issuer or Parent or any Person listed as an attorney-in-fact in the written resolutions adopted by the shareholders of the
Issuer. “Officer” of a Guarantor has a correlative meaning.
“
Officer’s Certificate
” means a certificate
signed by any Officer.
“
Opinion of Counsel
” means a written opinion signed by legal counsel who may be an employee of or
counsel to the Issuer or Parent.
“
Parent
” means Kansas City Southern, a Delaware corporation, and its successors.
“
Participant
” means, with respect to the Depositary, a Person who has an account with the Depositary.
“
Periodic Offering
” means an offering of Securities of a series from time to time, the specific terms of which Securities,
including the rate or rates of interest, if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Issuer or its agents upon the issuance of such Securities.
“
Person
” means any individual, corporation, partnership, limited liability company, joint venture, association, joint
stock company, trust, unincorporated organization, government or agency or political subdivision thereof or any other entity.
“
Redemption Date
” means the date fixed for the redemption of any Security by or pursuant to this Indenture or an indenture
supplemental hereto.
3
“
Redemption Price
” means the price at which such a Security is to be redeemed
pursuant to this Indenture or an indenture supplemental hereto.
“
Registered Global Security
” means a Security evidencing
all or a part of a series of Registered Securities, issued to the Depositary for such series in accordance with
Section 2.02
hereof, and bearing the legend prescribed in
Section 2.02(h)
hereof.
“
Registered Security
” means any Security registered on the Security Register.
“
Responsible Officer
,” when used with respect to the Trustee, means any vice president, any assistant treasurer, any trust
officer or assistant trust officer, or any other officer of the Trustee in its Corporate Trust Office having direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“
S&P
” means Standard & Poor’s Ratings Services, a division of Standard & Poor’s Financial
Services LLC, a subsidiary of The McGraw-Hill Companies, Inc.
“
Securities Act
” means the Securities Act of 1933, as
amended.
“
Security
” or “
Securities
” means any securities that are authenticated and delivered under
this Indenture.
“
Significant Subsidiary
” means, at any date of determination, any of Parent’s Subsidiaries that,
together with its Subsidiaries, (i) for its most recent fiscal year, accounted for more than 10.0% of the consolidated revenues of Parent and its Subsidiaries or (ii) as of the end of such fiscal year, was the owner of more than 10.0% of
the consolidated assets of Parent and its Subsidiaries, in each case as set forth on Parent’s most recently available consolidated financial statements for such fiscal year.
“
Stated Maturity
” means, with respect to any installment of interest or principal on any series of indebtedness, the date on
which the payment of interest or principal is scheduled to be paid in the documentation governing such indebtedness, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
“
Subsidiary
” means, with respect to any Person, any corporation,
association or other business entity of which more than 50.0% of the voting power of the outstanding Voting Stock is owned, directly or indirectly, by such Person and one or more other Subsidiaries of such Person.
“
TIA
” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
“
Trustee
” means the party named as such in the first paragraph of this Indenture until a successor replaces it in accordance
with the provisions of
Article VII
, and thereafter shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
“
United States Bankruptcy Code
” means the
Bankruptcy Reform Act of 1978, as amended and as codified in Title 11 of the United States Code, as amended from time to time hereafter, or any successor federal bankruptcy law.
“
Unregistered Security
” means any Security other than a Registered Security.
4
“
Voting Stock
” means, with respect to any Person, all classes of Capital Stock
of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.
Section 1.02
Other Definitions
.
|
|
|
|
|
Term
|
|
Section
|
|
Authenticating Agent
|
|
2.02(e)
|
|
Covenant Defeasance
|
|
8.03
|
|
Event of Default
|
|
6.01
|
|
Legal Defeasance
|
|
8.02
|
|
Mandatory Sinking Fund Payment
|
|
3.08(a)
|
|
Optional Sinking Fund Payment
|
|
3.08(a)
|
|
Paying Agent
|
|
2.05(a)
|
|
record date
|
|
2.04(c)
|
|
Registrar
|
|
2.05(a)
|
|
Security Register
|
|
2.05(a)
|
|
Sinking Fund Payment Date
|
|
3.08(a)
|
|
tranche
|
|
2.14
|
Section 1.03
Incorporation by Reference of TIA
. Whenever this Indenture refers to a
provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“obligor” on the Securities and the Note Guarantees means the Issuer and the Guarantors, respectively, and any successor obligor
upon the Securities and the Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by Commission rule under the TIA have the meanings so assigned to them.
Section 1.04
Rules of Construction
. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or” is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) “will” shall be interpreted to express a command;
(f) provisions apply to successive events and transactions;
(g) references to sections of or rules under the Securities Act and the Exchange Act will be deemed to include substitute,
replacement of successor sections or rules adopted by the Commission from time to time; and
(h) the terms
“includes,” “including” or similar words shall be deemed to be followed by “without limitation.”
5
ARTICLE II
THE SECURITIES
Section 2.01
Form and Dating
. The Securities of each series shall be substantially in such form or forms (not inconsistent
with this Indenture) as shall be established by or pursuant to one or more Board Resolutions or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law, or with any
rules of any securities exchange or usage, all as may be determined by the Officers executing such Securities as evidenced by their execution of the Securities. Unless otherwise so established, Unregistered Securities shall have coupons attached. To
the extent any provisions of any Security conflict with the express provisions of this Indenture, the provisions of this Indenture shall govern and control.
Section 2.02
Execution and Authentication
.
(a) One Officer of the Issuer must sign the Securities and the coupons appertaining thereto, if any, by manual, facsimile or
.pdf signature.
(b) If an Officer whose signature is on a Security or coupon appertaining thereto no longer holds that
office at the time such Security is authenticated, such Security will nevertheless be valid.
(c) A Security will not be
valid until authenticated by the manual signature of the Trustee. The signature will be conclusive evidence that the Security has been authenticated under this Indenture. Unless otherwise specified with respect to a series of Securities, a Security
shall be dated the date of its authentication.
(d) At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities of any series having attached thereto appropriate coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section,
and the Trustee shall, upon receipt of a Company Order, authenticate such Securities for issuance under this Indenture. Such Company Order may authorize authentication and delivery pursuant to electronic instructions from the Issuer or its duly
authorized agent or agents. In authenticating such Securities, the Trustee shall be entitled to receive prior to the authentication of any Securities of such series each of the following, and (subject to
Article VII
) shall be fully protected
in relying upon, unless and until such documents have been superseded or revoked:
(i) a Board Resolution and/or executed
supplemental indenture referred to in
Section 2.01
and
2.03
hereof by or pursuant to which the forms and terms of the Securities of that series were established;
(ii) a Company Order;
(iii) an Officer’s Certificate stating that (A) all covenants and conditions precedent to the issuance, execution,
authentication and delivery of the Securities have been complied with, (B) no Default or Event of Default has occurred and is continuing, and (C) setting forth the form or forms and terms of the Securities, stating that the form or forms
and terms of the Securities of such series have been, or, in the case of a Periodic Offering, will be when established in accordance with such procedures as shall be referred to therein, established in compliance with this Indenture; and
(iv) an Opinion of Counsel substantially to the following effect, which Opinion of Counsel may contain such assumptions,
qualifications and limitations as such counsel shall
6
reasonably deem appropriate: (A) the form or forms and terms of the Securities of such series have been, or, in the case of a Periodic Offering, will be when established in accordance with
such procedures as shall be referred to therein, established in compliance with this Indenture and (B) this Indenture and such Securities have been duly authorized and, if executed and authenticated in accordance with the provisions of this
Indenture and delivered and duly paid for, will be entitled to the benefits of this Indenture and will constitute valid and legally binding obligations of the Issuer, enforceable against the Issuer in accordance with their respective terms, subject
to bankruptcy, insolvency, reorganization, receivership, moratorium and other similar laws affecting creditors’ rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding of equity or
law).
(e) The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Securities
(“
Authenticating Agent
”). An Authenticating Agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An Authenticating
Agent has the same rights as an Agent to deal with Holders, the Issuer or an Affiliate of the Issuer.
(f) Notwithstanding
the provisions of
Section 2.01
hereof and this
Section 2.02
, if, in connection with a Periodic Offering, all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Board
Resolution or Officer’s Certificate and Opinion of Counsel otherwise required pursuant to this Section at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued;
provided
that a Company Order shall be delivered in connection with each request to authenticate any Security.
(g) With respect to Securities of a series offered in a Periodic Offering, the Trustee may conclusively rely, as to the
authorization by the Issuer of any of such Securities, the forms and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant to this Section, as
applicable, in connection with the first authentication of Securities of such series.
(h) If the Issuer shall establish
pursuant to or as contemplated by
Section 2.03
hereof that the Securities of a series or a portion thereof are to be issued in the form of one or more Registered Global Securities, then the Issuer shall execute and the Trustee, upon
receipt of a Company Order, shall authenticate and deliver one or more Registered Global Securities in temporary or permanent form that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of
the Securities of such series issued in such form and not yet cancelled, (ii) shall be registered in the name of the Depositary for such Registered Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered
by the Trustee to such Depositary or pursuant to such Depositary’s instructions and (iv) shall bear a legend substantially to the following effect:
“THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”
7
Section 2.03
Amount Unlimited; Issuable in Series
.
(a) The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
(b) There shall be established in or pursuant to a Board Resolution and set forth in an Officer’s Certificate, or
established in one or more indentures supplemental hereto, prior to the initial issuance of Securities of any series, subject to the last sentence of this
Section 2.03
, any or all of the following:
(i) title and aggregate principal amount;
(ii) any applicable subordination provisions for any subordinated Securities;
(iii) whether the Securities will be secured or unsecured;
(iv) the Guarantors, if any, and the terms of any Note Guarantees (including provisions relating to seniority, subordination,
security and release of any Note Guarantees);
(v) whether the Securities are exchangeable for other securities;
(vi) the price, or prices, expressed as a percentage or percentages of principal amount at which the Securities will be issued;
(vii) issue and maturity date(s);
(viii) interest rate(s) or the method for determining the interest rate(s);
(ix) dates on which interest will accrue or the method for determining dates on which interest will accrue;
(x) dates on which interest will be payable and record dates for the determination of the Holders to which interest will be
payable on such payment dates;
(xi) the places where payments on the Securities will be payable;
(xii) redemption or early repayment provisions;
(xiii) authorized denominations;
(xiv) form;
(xv) amount of discount or premium, if any, with which the Securities will be issued;
(xvi) whether the Securities will be issued in whole or in part in the form of one or more Registered Global Securities;
(xvii) identity of the Depositary for Registered Global Securities;
(xviii) whether a temporary Security is to be issued with respect to a series and whether any interest payable prior to the
issuance of definitive Securities of the series will be credited to the account of the Persons entitled thereto;
(xix) the
terms upon which beneficial interests in a temporary Registered Global Security may be exchanged in whole or in part for beneficial interests in a definitive Registered Global Security or for individual definitive Securities;
8
(xx) any covenants applicable to the particular Securities being issued;
(xxi) any Defaults and Events of Default applicable to the particular Securities being issued;
(xxii) currency, currencies or currency units in which the purchase price for, the principal of and any premium and any
interest on, such Securities will be payable;
(xxiii) the time period within which, the manner in which and the terms and
conditions upon which the purchaser of the Securities can select the payment currency;
(xxiv) the securities exchange(s)
on which the Securities will be listed, if any;
(xxv) the Issuer’s obligation or right to redeem, purchase or repay
Securities under a sinking fund, amortization or analogous provision;
(xxvi) provisions relating to covenant defeasance
and legal defeasance;
(xxvii) provisions relating to satisfaction and discharge of this Indenture;
(xxviii) provisions relating to the modification of the Securities and this Indenture; and
(xxix) any other terms of the Securities of such series and Note Guarantees thereof, if any (which terms are not inconsistent
with the provisions of the TIA, but may modify, amend, supplement or delete any of the terms of this Indenture with respect to the Securities of such series and Note Guarantees thereof, if any).
(c) Each Depositary designated pursuant to this
Section 2.03
must, at the time of its designation and at all times
while it serves as Depositary, be either a clearing agency registered under the Exchange Act and any other applicable statute or regulation or a foreign clearing agency regulated by a foreign financial regulatory authority as defined in
Section 3(a)(52) of the Exchange Act, including Euroclear Bank S.A./N.V. and Clearstream Banking, société anonyme.
(d) All Securities of any one series and coupons, if any, appertaining thereto shall be substantially identical, except
(i) in the case of Registered Securities as to date and denomination, (ii) in the case of any Periodic Offering and (iii) as otherwise may be provided by or pursuant to the Board Resolution referred to in clause (b) above or as
set forth in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to such Board
Resolution or in any such indenture supplemental hereto and any forms and terms of Securities to be issued from time to time may be completed and established from time to time prior to the issuance thereof by procedures described in such Board
Resolution or supplemental indenture.
Section 2.04
Denomination and Date of Securities; Payments of Interest
.
(a) The Securities of each series shall be issuable as Registered Securities or Unregistered Securities in denominations
established as contemplated by
Section 2.03
hereof or, if not so established with respect to Securities of any series, in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Securities of each series
shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the Officers of the Issuer executing the same may determine, as evidenced by their execution thereof.
(b) The Securities of each series shall bear interest, if any, from the date, and such interest and shall be payable on the
dates, established as contemplated by
Section 2.03
hereof.
9
(c) The Person in whose name any Registered Security of any series is registered
at the close of business on any record date applicable to a particular series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding any
transfer or exchange of such Registered Security subsequent to the record date and prior to such interest payment date. The term “
record date
” as used with respect to any interest payment date (except a date for payment of defaulted
interest) for the Securities of any series shall mean the date specified as such in the terms of the Registered Securities of such series established as contemplated by
Section 2.03
hereof, or, if no such date is so established, the 15th
day next preceding such interest payment date, whether or not such record date is a Business Day.
Section 2.05
Registrar and
Paying Agent
.
(a) The Issuer will maintain an office or agency where Securities may be presented for registration,
registration of transfer or for exchange (the “
Registrar
”), an office or agency where Securities may be presented for payment (the “
Paying Agent
”) and an office or agency where notices and demands to or upon the
Issuer in respect of the Securities and this Indenture may be served. The Registrar will keep a register of the Registered Securities and the Holders thereof and of the Registered Securities’ registration, transfer and exchange (the
“
Security Register
”). The Issuer may appoint one or more co-Registrars and one or more additional Paying Agents. The Issuer, any Subsidiary of the Issuer or any Affiliate of any of them may act as Paying Agent, Registrar or
co-Registrar, or agent for service of notices and demands;
provided
that neither the Issuer, any Subsidiary of the Issuer or any Affiliate of any of them shall act as Paying Agent in connection with the defeasance of the Securities or the
discharge of this Indenture under
Article VIII
hereof. The Issuer initially appoints the Trustee as Registrar, Paying Agent, Calculation Agent and agent for service of notices and demands.
The Issuer shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the TIA that relate to such Agent. The Issuer shall give prompt written notice to the Trustee of the name and address of any Agent and any change in the name or address of an Agent. If the Issuer fails to maintain a
Registrar, Paying Agent or agent for service of notices and demands, the Trustee shall act as such Registrar, Paying Agent or agent for service of notices and demands for so long as such failure shall continue. The Issuer may remove any Agent upon
written notice to such Agent and the Trustee;
provided
that no such removal shall become effective until (i) the acceptance of an appointment by a successor Agent to such Agent as evidenced by an appropriate agency agreement entered into
by the Issuer and such successor Agent and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as such Agent until the appointment of a successor Agent in accordance with clause (i) of this proviso.
(b) Prior to due presentment for the registration of a transfer of any Registered Security, the Trustee, any Agent and the
Issuer may deem and treat the Person in whose name such Registered Security is registered as the absolute owner of such Registered Security for the purpose of receiving payment of principal of and interest on such Registered Security and for all
other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.
(c) The
Trustee, any Agent and the Issuer may treat the bearer of any Unregistered Security and the bearer of any coupon as the absolute owner of such Unregistered Security or coupon for the purpose of receiving payment thereof or on account thereof and for
all other purposes, whether or not such Unregistered Security or coupon be overdue, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.
Section 2.06
Paying Agent to Hold Money in Trust
. The Issuer shall require each Paying Agent other than the Trustee
to agree in writing that such Paying Agent (i) will hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal,
10
premium or interest on the Securities and (ii) will notify the Trustee in writing of any default by the Issuer in making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than Parent, the Issuer or
a Subsidiary of the Issuer) will have no further liability for the money so paid over. If Parent, the Issuer or a Subsidiary of the Issuer acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee will serve as Paying Agent for the Securities.
Section 2.07
Holder Lists
. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of all Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least seven Business Days before each interest
payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders and the Issuer shall otherwise comply with
TIA § 312(a).
Section 2.08
Transfer and Exchange
.
(a) Unregistered Securities (except for any temporary global Unregistered Securities) and coupons (except for coupons attached
to any temporary global Unregistered Securities) shall be transferable by delivery.
(b) At the option of the Holder
thereof,
(i) Registered Securities of any series (other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such series and like tenor, of any authorized denominations and like aggregate principal amount and maturity, upon surrender of such Registered Securities to be exchanged at the
Registrar in accordance with
Section 2.05
hereof and upon payment, if the Issuer shall so require, of the charges hereinafter provided;
(ii) if the Securities of any series are issued in both registered and unregistered form, except as otherwise established
pursuant to
Section 2.03
hereof, Unregistered Securities of any series may be exchanged for Registered Securities of such series and tenor having authorized denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the Registrar in accordance with
Section 4.02
hereof, with, in the case of Unregistered Securities that have coupons attached, all unmatured coupons and all matured coupons in default thereto
appertaining, and upon payment, if the Issuer shall so require, of the charges hereinafter provided;
(iii) if Unregistered
Securities of any series, maturity date, interest rate and issue date are issued in more than one authorized denomination, except as otherwise established pursuant to
Section 2.03
hereof, such Unregistered Securities may be exchanged for
Unregistered Securities of such series and tenor having authorized denominations and an equal aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at the Registrar in accordance with
Section 4.02
hereof, with, in the case of Unregistered Securities that have coupons attached, all unmatured coupons and all matured coupons in default thereto appertaining, and upon payment, if the Issuer shall so require, of the charges hereinafter provided.
Registered Securities of any series may not be exchanged for Unregistered Securities of such series. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee, upon receipt of a Company Order, shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
11
(c) Upon surrender for registration of transfer of any Registered Security of a
series at the Registrar in accordance with
Section 2.05
hereof and upon payment (if so required by the Issuer) of the charges hereinafter provided, the Issuer shall execute, and the Trustee shall, upon receipt of a Company Order,
authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount and maturity.
(d) All Registered Securities presented or surrendered for registration of transfer, exchange, redemption or payment shall (if
so required by the Issuer) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer duly executed by the Holder thereof or his attorney duly authorized in writing.
(e) No service charge shall be made to a Holder of a Security for any registration of transfer or exchange, but the Issuer may
require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.11
and
3.08
hereof).
(f) Notwithstanding any other provision of this
Section 2.08
, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Registered Global Security representing all or a portion of the Securities of a series may not be transferred except as a
whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
(g) Registered Global Securities may be exchanged by the Issuer for Registered
Securities of such series in definitive form if:
(i) the Issuer delivers to the Trustee notice from the Depositary that it
is unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Issuer within 120 days after the date of such
notice from the Depositary;
(ii) the Issuer in its sole discretion determines that the Registered Global Securities (in
whole but not in part) should be exchanged for Registered Securities in definitive form and delivers an Officer’s Certificate to such effect to the Trustee; or
(iii) there has occurred and is continuing a Default or Event of Default with respect to the Securities of the applicable
series.
(h) If established by the Issuer pursuant to
Section 2.03
hereof with respect to any Registered Global
Security, the Depositary for such Registered Global Security may surrender such Registered Global Security in exchange in whole or in part for Registered Securities of the same series in definitive registered form on such terms as are acceptable to
the Issuer and such Depositary. Thereupon, the Issuer shall execute, and the Trustee shall, upon receipt of a Company Order, authenticate and deliver, without service charge:
(i) to each Person specified by such Depositary, new Registered Securities of the same series, of any authorized denominations
as requested by such Person, in an aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Registered Global Security; and
12
(ii) to such Depositary, a new Registered Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered Registered Global Security and the aggregate principal amount of Registered Securities authenticated and delivered pursuant to clause (i) above.
(i) Registered Securities issued in exchange for a Registered Global Security pursuant to this
Section 2.08
shall
be registered in such names and in such authorized denominations as the Depositary for such Registered Global Security, pursuant to instructions from its Participant or Indirect Participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to or as directed by the Persons in whose names such Securities are so registered. The Registered Global Security exchanged shall be canceled by the Trustee.
(j) All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the
Issuer, evidencing the same Debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
(k) Notwithstanding anything herein or in the forms or terms of any Securities to the contrary, none of the Issuer, the Trustee
or any agent of the Issuer or the Trustee shall be required to exchange any Unregistered Security for a Registered Security if the Issuer has determined that such exchange would result in adverse federal income tax consequences to the Issuer (such
as, for example, the inability of the Issuer to deduct from its income, as computed for federal income tax purposes, the interest payable on the Unregistered Securities) under then applicable United States federal income tax laws. The Trustee and
any such agent shall be entitled to rely on an Officer’s Certificate or an Opinion of Counsel in determining such result.
(l) Neither the Registrar nor the Issuer shall be required (i) to issue, to register the transfer of or to exchange any
Securities during a period beginning at the opening of business 15 days before the day of any selection of Securities for redemption and ending at the close of business on the day of selection, (ii) to register the transfer of or to exchange
any Securities selected for redemption in whole or in part, except the unredeemed portion of any Securities being redeemed in part or (iii) to register the transfer of or to exchange a Registered Security between a record date and the next
succeeding interest payment date.
Section 2.09
Replacement Securities
.
(a) If any mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee or the
Issuer, the Issuer will issue and the Trustee, upon receipt of a Company Order, will authenticate, in exchange for such mutilated Security or in exchange for the Security to which a mutilated coupon appertains, a replacement Security of the same
series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such mutilated Security or to the Security to which such mutilated coupon
appertains.
(b) If the Trustee or the Issuer receives evidence to its satisfaction of the destruction, loss or theft of
any Security or coupon, the Issuer will issue and the Trustee, upon receipt of a Company Order, will authenticate, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or stolen), a replacement Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.
13
(c) An indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Issuer to protect the Issuer, the Trustee and any Agent from any loss that any of them may suffer if a Security is replaced. The Issuer may charge such Holder for its expenses and the expenses of the Trustee in
replacing a Security. In case any such mutilated, lost, destroyed or wrongfully taken Security has become or is about to become due and payable, the Issuer in its discretion may pay such Security instead of issuing a new Security in replacing a
Security.
(d) Every replacement Security of any series, with its coupons, if any, is an additional obligation of the
Issuer and will be entitled to all of the benefits of this Indenture equally and proportionately with all other Securities of the same series and their coupons, if any, duly issued hereunder.
Section 2.10
Outstanding Securities
.
(a) The Securities outstanding at any time are all the Securities that have been authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in this
Section 2.10
as not outstanding. A Security does not cease to be outstanding because the Issuer or one of its Affiliates holds such Security;
provided
,
however
, that, in determining whether the Holders of the requisite principal amount of the outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Issuer or any Guarantor or any Affiliate of the Issuer or any Guarantor shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Issuer or any other obligor of the Securities or any Affiliate of the Issuer
or of such other obligor.
(b) If a Security is replaced pursuant to
Section 2.09
hereof, it ceases to be
outstanding unless and until the Trustee and the Issuer receive proof reasonably satisfactory to them that the replaced Security is held by a protected purchaser.
(c) If the principal amount of any Security is considered paid under
Section 4.01
hereof, it ceases to be
outstanding and interest on it ceases to accrue.
(d) If the Paying Agent (other than the Issuer or an Affiliate of the
Issuer) holds on a maturity date money sufficient to pay Securities payable on that date, then on and after that date such Securities cease to be outstanding and interest on them shall cease to accrue.
Section 2.11
Temporary Securities
. Until definitive Securities of any series are ready for delivery, the Issuer may prepare and
the Trustee shall authenticate temporary Securities of any series. Temporary Securities of any series shall be substantially in the form of definitive Securities of such series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officer executing the temporary Securities of such series, as evidenced by their execution of such temporary Securities. If temporary Securities of any series are issued, the Issuer will cause definitive
Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Securities of any series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender
of the temporary Securities of such series at the office or agency of the Issuer designated for such purpose pursuant to
Section 4.02
hereof, without charge to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of such series of authorized denominations. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series.
14
Section 2.12
Cancellation
. The Issuer at any time may deliver to the Trustee
for cancellation Securities of any series previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation Securities of any series previously authenticated
hereunder which the Issuer has not issued and sold. The Registrar and the Paying Agent shall forward to the Trustee Securities of any series surrendered to them for transfer, exchange or payment. The Trustee shall cancel all Securities surrendered
for transfer, exchange, payment or cancellation and shall dispose of them in accordance with its normal procedure. The Issuer shall not issue new Securities of any series to replace Securities of such series it has paid in full or delivered to the
Trustee for cancellation.
Section 2.13
CUSIP Numbers
. The Issuer in issuing the Securities may use “CUSIP”
or “ISIN” numbers (if then generally in use), and the Trustee shall use “CUSIP” or “ISIN” numbers, as the case may be, in notices of redemption or exchange as a convenience to Holders; provided that any such notice
shall state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption or exchange and that reliance may be placed only on the other identification numbers
printed on the Securities. The Issuer will promptly notify the Trustee of any change in the “CUSIP” or “ISIN” numbers for the Securities.
Section 2.14
Series May Include Tranches
. A series of Securities may include one or more tranches (each a
“
tranche
”) of Securities, including Securities issued in a Periodic Offering. The Securities of different tranches may have one or more different terms, including authentication dates and offering prices, but all the Securities
within each such tranche shall have identical terms, including authentication date and offering price. Notwithstanding any other provision of this Indenture, with respect to
Sections 2.02
(other than clauses (c) and
(g) thereof) through
2.04
,
2.08
,
2.09
,
2.13
,
3.01
through
3.08
,
4.02
,
6.01
through
6.14
,
8.01
through
8.03
,
8.06
,
10.01
,
10.02
and
11.01
through
11.04
, hereof, if any series of Securities includes more than one tranche, all provisions of such sections applicable to any series of Securities shall be deemed equally applicable to each tranche of any series of Securities in the
same manner as though originally designated a series unless otherwise provided with respect to such series or tranche pursuant to
Section 2.03
hereof. In particular, and without limiting the scope of the next preceding sentence, any of
the provisions of such sections which provide for or permit action to be taken with respect to a series of Securities shall also be deemed to provide for and permit such action to be taken instead only with respect to Securities of one or more
tranches within that series (and such provisions shall be deemed satisfied thereby), even if no comparable action is taken with respect to Securities in the remaining tranches of that series.
Section 2.15
Defaulted Interest
. If the Issuer defaults in a payment of interest on the Securities, it shall pay, or shall
deposit with the Paying Agent money in immediately available funds sufficient to pay, the defaulted interest, plus (to the extent lawful) interest on the defaulted interest, to the Persons who are Holders on a subsequent special record date. A
special record date, as used in this
Section 2.15
with respect to the payment of any defaulted interest, shall mean the 15th day preceding the date fixed by the Issuer for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before the subsequent special record date, the Issuer shall mail to each Holder and to the Trustee a notice that states the subsequent special record date, the payment date and the amount of defaulted interest to be
paid.
15
ARTICLE III
REDEMPTION
Section 3.01
Applicability of Article
. The provisions of this
Article III
shall be applicable to the Securities
of any series which are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by
Section 2.03
hereof for Securities of such series.
Section 3.02
Selection of Securities to Be Redeemed
.
If less than all of the Securities of any series are to be redeemed at any time, the Trustee shall select the Securities of such series to be
redeemed in compliance with the requirements of the principal national securities exchange, if any, on which such Securities are listed, or if such Securities are not listed on a national securities exchange, on a
pro rata
basis, by lot or by
such other method as the Trustee in its sole discretion shall deem to be fair and appropriate. The Trustee shall make the selection from the Securities of the applicable series not previously called for redemption.
The Trustee shall promptly notify the Issuer in writing of the Securities selected for redemption and, in the case of any Security of a series
selected for partial redemption, the principal amount thereof to be redeemed. Securities may be redeemed in principal amounts equal to authorized denominations for Securities of such series; except that if all of the Securities of a series of a
Holder are to be redeemed, the entire outstanding amount of Securities of such series held by such Holder may be redeemed, even if not in the authorized denominations for such Security. Except as provided in the preceding sentence, provisions of
this Indenture that apply to Securities of a series called for redemption also apply to portions of Securities of a series called for redemption.
If a Security of any series is to be redeemed in part only, the notice of redemption that relates to such Security shall state the portion of
the principal amount of such Security that is to be redeemed. A new Security of the applicable series in principal amount equal to the unredeemed portion of the original Security shall be issued in the name of the Holder of the Securities of such
series upon cancellation of the original Securities. Securities called for redemption become due on the Redemption Date. On and after the Redemption Date, interest ceases to accrue on Securities or portions of them called for redemption unless the
Issuer defaults in making the applicable redemption payment.
Section 3.03
Notice of Redemption
.
(a) At least 30 days but not more than 60 days before a Redemption Date, the Issuer shall mail or cause to be mailed, by first
class mail or delivered electronically, a notice of redemption to each Holder whose Securities are to be redeemed at its registered address, except that redemption notices may be mailed or delivered electronically more than 60 days prior to a
Redemption Date if the notice is issued in connection with a defeasance of the Securities or a satisfaction and discharge of this Indenture with respect to a series of Securities. Notices of redemption may not be conditional.
(b) The notice will identify the Securities to be redeemed and will state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if Securities of any series are being redeemed in part, the portion of the principal amount of such Securities to be
redeemed and that, after the Redemption Date upon surrender of such Securities, a new Security or Securities in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Securities;
16
(iv) the name and address of the Paying Agent;
(v) that Securities called for redemption together with coupons appertaining thereto maturing after the Redemption Date, if
any, must be surrendered to the Paying Agent to collect the Redemption Price;
(vi) that, unless the Issuer defaults in
making such redemption payment, interest on Securities called for redemption ceases to accrue on and after the Redemption Date and the only remaining right of the Holders is to receive payment of the Redemption Price plus accrued interest to the
Redemption Date upon surrender of the Securities to the Paying Agent;
(vii) the paragraph of the Securities and/or
section of the Officer’s Certificate or indenture supplemental hereto pursuant to which the Securities are issued pursuant to which the Securities called for redemption are being redeemed; and
(viii) that, if any Security contains a “CUSIP” or “ISIN” number as provided in
Section 2.13
hereof, no representation is being made as to the correctness of the “CUSIP” or “ISIN” number either as printed on the Security or as contained in the notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Security.
(c) At the Issuer’s request (which request may be revoked by the
Issuer at any time prior to the time at which the Trustee shall have given such notice to the Holders), made in writing to the Trustee at least 60 days (or such shorter period as shall be satisfactory to the Trustee) before a Redemption Date,
the Trustee shall give the notice of redemption in the name and at the expense of the Issuer. If, however, the Issuer gives such notice to the Holders, the Issuer shall concurrently deliver to the Trustee an Officer’s Certificate stating that
such notice has been given.
Section 3.04
Effect of Notice of Redemption
. Once notice of redemption is mailed,
Securities called for redemption become due and payable on the Redemption Date and at the Redemption Price. Upon surrender of any Securities to the Paying Agent, such Securities shall be paid at the Redemption Price, plus accrued interest, if any,
to the Redemption Date.
Section 3.05
Deposit of Redemption Price
. Prior to 12:00 p.m. New York City time on any
Redemption Date, the Issuer shall deposit with the Paying Agent (or, if the Issuer is acting as its own Paying Agent, shall segregate and hold in trust as provided in
Section 2.05
hereof) money sufficient to pay the Redemption Price of
and accrued interest to but excluding the Redemption Date on all Securities to be redeemed on that date other than Securities or portions thereof called for redemption on that date that have been delivered by the Issuer to the Trustee for
cancellation.
Section 3.06
Payment of Securities Called for Redemption
. If notice of redemption has been given in the
manner provided above, the Securities or portion of Securities specified in such notice to be redeemed shall become due and payable on the Redemption Date at the Redemption Price, together with accrued interest to such Redemption Date, and on and
after such date (unless the Issuer shall default in the payment of such Securities at the Redemption Price and accrued interest to but excluding the Redemption Date, in which case the principal, until paid, shall bear interest from the Redemption
Date at the rate prescribed in the Securities), such Securities shall cease to accrue interest. Upon surrender of any Security for redemption in accordance with a notice of redemption, such Security shall be paid and redeemed by the Issuer at the
Redemption Price;
provided
that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders registered as such at the close of business on the relevant record date.
If any Security with coupons attached thereto is surrendered for redemption and is not accompanied by all appurtenant coupons maturing after
the Redemption Date, the surrender of such missing coupon or coupons may be waived by the Issuer and the Trustee, if there be furnished to each of them such security or indemnity as they may require to save each of them harmless.
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Section 3.07
Securities Redeemed in Part
. Upon surrender of a Security of any
series that is redeemed in part, the Issuer shall issue and, upon receipt of a Company Order, the Trustee shall authenticate for the Holder at the expense of the Issuer a new Security or Securities of such series (with any unmatured coupons
attached), of authorized denominations, equal in principal amount to the unredeemed portion of the Security surrendered.
Section 3.08
Mandatory and Optional Sinking Funds
.
(a) The provisions of this Section shall be applicable to any sinking fund for the retirement of Securities of any series
except as otherwise specified in the Officer’s Certificate or indenture supplemental hereto for such Securities. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a
“
Mandatory Sinking Fund Payment
,” and any payment in excess of such minimum amount provided for by the terms of the Securities of any series is herein referred to as an “
Optional Sinking Fund Payment
.” The date on
which a sinking fund payment is to be made is herein referred to as the “
Sinking Fund Payment Date
.” If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided
in clause (b) below. Each sinking fund payment shall be applied to the redemption of Securities as provided for by the terms of such Securities.
(b) The Issuer (i) may deliver outstanding Securities of a series (other than any previously called for redemption) and
(ii) may apply as a credit Securities of a series which have been redeemed either at the election of the Issuer pursuant to the terms of such Securities or through the application of permitted Optional Sinking Fund Payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the
terms of such Securities;
provided
that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as
specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
(c) Not less than 60 days prior to each Sinking Fund Payment Date for any Securities, the Issuer will deliver to the Trustee an
Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof,
if any, which is to be satisfied by delivering and crediting Securities pursuant to clause (b) above and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior to each such Sinking Fund Payment Date, the
Trustee shall select the Securities to be redeemed upon such Sinking Fund Payment Date in the manner specified in
Section 3.02
hereof and cause notice of the redemption thereof to be given in the name of and at the expense of the Issuer
in the manner provided in
Section 3.03
hereof. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in
Section 3.03
hereof.
ARTICLE IV
COVENANTS
Unless otherwise specified as contemplated by
Section 2.03
, the covenants contained in this
Article IV
shall be
applicable to the Securities of any series.
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Section 4.01
Payment of Securities
. The Issuer shall pay the principal of,
premium, if any, and interest on the Securities of a series on the dates and in the manner provided in the Securities of such series and this Indenture and any indenture supplement hereto. An installment of principal, premium, if any, or interest
shall be considered paid on the date due if the Trustee or Paying Agent (if the Paying Agent is a Person other than the Issuer, a Subsidiary of the Issuer or any Affiliate of any of them) holds at 12:00 p.m. New York City time on that date money
designated for and sufficient to pay the installment. If the Issuer or any Subsidiary of the Issuer or any Affiliate of any of them acts as Paying Agent, an installment of principal, premium, if any, or interest shall be considered paid on the due
date if the entity acting as Paying Agent complies with
Section 2.06
hereof.
The Issuer shall pay interest on overdue
principal of and premium, if any, and interest on overdue installments of interest, to the extent lawful, at the rate per annum specified in the Securities.
If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue on such payment for the intervening period.
Section 4.02
Maintenance of Office or
Agency
.
The Issuer will maintain an office or agency where Securities of any series may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and demands to or upon the Issuer in respect of the Securities of a series and this Indenture and an indenture supplement hereto may be served. The Issuer will give prompt
written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in
Section 12.02
hereof.
The Issuer may also from time to time designate one or more other offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such designations. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office
or agency.
The Issuer hereby initially designates the office of the Trustee at 225 Asylum Street, 23
rd
Floor, Hartford, CT 06103 as such office of the Issuer in accordance with
Section 2.05
hereof.
Section 4.03
Notice of Defaults
. In the event that Parent or the Issuer become aware of any Default or Event of Default,
Parent or the Issuer, respectively, promptly after it becomes aware thereof, will give written notice thereof to the Trustee.
Section 4.04
Statement as to Compliance
. Parent shall deliver to the Trustee within 90 days after the end of each fiscal
year of Parent a written statement signed by the principal executive officer, principal financial officer or principal accounting officer, the president, any vice president, the treasurer or the secretary of Parent, which need not constitute an
Officer’s Certificate, stating that a review has been conducted of Parent’s activities and those of its Significant Subsidiaries and of Parent’s and its Significant Subsidiaries’ performance under this Indenture and that, to the
best of such person’s knowledge, Parent and the Issuer have fulfilled all obligations hereunder (or, if there has been a Default in the fulfillment of any such obligation, specifying each such Default and the nature and status thereof).
Section 4.05
Holders’ Lists
. The Issuer shall furnish to the Trustee at least seven Business Days before each interest
payment date of a series of Securities and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of such series and the
Issuer shall otherwise comply with TIA § 312(a);
provided, however
, that so long as the Trustee shall be the Registrar, such lists shall not be required to be furnished.
19
ARTICLE V
SUCCESSORS
Section 5.01
Merger, Consolidation or Sale of Assets
. Neither the Issuer nor any Guarantor will consolidate with, merge
with or into, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all its property and assets (as an entirety or substantially as an entirety in one transaction or a series of related transactions) to, any Person or
permit any Person to merge with or into the Issuer or such Guarantor unless:
(a) the Issuer or such Guarantor shall be the
continuing Person, or the Person (if other than the Issuer or such Guarantor) formed by such consolidation or into which the Issuer or such Guarantor is merged or that acquired or leased such property and its assets shall be a corporation organized
and validly existing under the laws of the United States of America, any state thereof or the District of Columbia (or in the case of a Guarantor, a corporation, partnership, limited liability company or similar entity organized and validly existing
under the laws of the jurisdiction under which such Guarantor was organized) and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of
the Issuer or such Guarantor under the Securities, the Note Guarantee and this Indenture, as applicable;
provided
that this clause (a) shall not apply with respect to a Guarantor whose Note Guarantee is released as described in
Section 9.04
hereof;
(b) immediately after giving effect to such transaction, no Default or Event of Default
shall have occurred and be continuing; and
(c) Parent delivers to the Trustee an Officer’s Certificate and an Opinion
of Counsel, in each case stating that such consolidation, merger, sale, assignment, conveyance, transfer, lease or other deposition and such supplemental indenture complies with this
Section 5.01
.
Section 5.02
Successor Substituted
. Upon any consolidation or merger, or any sale, assignment, conveyance, transfer, lease or
other disposition of all or substantially all of the property and assets of the Issuer or any Guarantor in accordance with
Section 5.01
hereof, the successor Person formed by such consolidation or into which the Issuer or any Guarantor
is merged or to which such sale, assignment, conveyance, transfer, lease or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or such Guarantor under this Indenture with the
same effect as if such successor Person had been named as the Issuer or such Guarantor herein.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01
Events of Default
. Each of the following is an “
Event of Default
” with respect to the
Securities of any series:
(a) default in the payment of principal of (or premium, if any, on) any Security of such series
when the same becomes due at maturity, upon acceleration, redemption or otherwise;
(b) default in the payment of interest
on the Securities of such series when due and such default continues for a period of 30 days;
(c) default in the
performance of any covenant of the Issuer or a Guarantor in this Indenture (other than a default specified in clause (a) or (b) above), and such default continues for a period of 90 days after written notice by the Trustee or the Holders
of 25% or more in aggregate principal amount of the Securities of such series;
20
(d) a court having jurisdiction in the premises enters a decree or order for:
(i) relief in respect of the Issuer or a Guarantor in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect,
(ii) appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for the Issuer or a Guarantor or for all or substantially all of the property and assets of the Issuer or a Guarantor, or
(iii) the winding-up or liquidation of the affairs of the Issuer or a Guarantor;
and, in each case, such decree or order shall remain unstayed and in effect for a period of 30 consecutive days;
(e) the Issuer or a Guarantor:
(i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary case under any such law;
(ii) consents to the appointment
of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for the Issuer or a Guarantor or for all or substantially all of the property and assets of the Issuer or a Guarantor; or
(iii) effects any general assignment for the benefit of creditors;
(f) any Note Guarantee ceases to be in full force and effect (except as contemplated by the terms of this Indenture) or any
Guarantor or Person acting on behalf of such Guarantor denies or disaffirms such Guarantor’s obligations under this Indenture or any Note Guarantee and such default continues for a period of 10 days after written notice by the Trustee or the
Holders of 25% or more in aggregate principal amount of the Securities of such series; and
(g) any other Event of Default
established pursuant to
Section 2.03
hereof with respect to the Securities of such series occurs.
Section 6.02
Acceleration
. If an Event of Default described in
Section 6.01
hereof shall have occurred and is continuing with respect to the Securities of any series then outstanding, either the Trustee or the Holders of at least 25% in
aggregate principal amount of the Securities of any such series that are outstanding may declare all Securities of such series outstanding to be due and payable immediately. The Holders of a majority in aggregate principal amount of the Securities
of any such series then outstanding may, by notice to the Trustee, on behalf of the Holders of all of the Securities of any such series, rescind an acceleration or waive any existing Default or Event of Default and its consequences under this
Indenture, except a continuing Default or Event of Default in the payment of interest or premium, if any, on, or the principal of, the Securities of any such series.
Section 6.03
Other Remedies
. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
by proceeding at law or in equity to collect the payment of principal of, premium, if any, or interest on the Securities or to enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding.
21
Section 6.04
Waiver of Past Defaults
. Subject to
Sections 6.02
,
6.10
and
12.02
hereof, Holders of a majority in aggregate principal amount of the then outstanding Securities of any series affected (voting as a single class) by notice to the Trustee may on behalf of the Holders of all of the
Securities of such series waive any existing Default or Event of Default and its consequences hereunder, except a Default in the payment of the principal of, premium, if any, or interest on, any Security of such series as specified in
clause (a) or (b) of
Section 6.01
or in respect of a covenant or provision of this Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Security of such series affected. Upon any
such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture;
provided
,
however
, that such waiver shall not extend to any subsequent
or other Default or Event of Default or impair any right consequent thereto.
Section 6.05
Control by Majority
. The
Holders of a majority in aggregate principal amount of the Securities of any series affected (voting as a single class) that are then outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series; provided that the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that may involve the Trustee in
personal liability or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders not joining in the giving of such direction;
provided further
that the Trustee may take any other action it deems proper that
is not inconsistent with any such direction received from Holders of the Securities of such series pursuant to this
Section 6.05
.
Section 6.06
Limitations on Suits
. A Holder may not institute any proceeding, judicial or other remedy, with respect to
this Indenture or the Securities of any series, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder gives the Trustee written notice of a continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of outstanding Securities of such series make a written request
to the Trustee to pursue the remedy;
(c) such Holder or Holders have offered to the Trustee indemnity satisfactory to the
Trustee against any costs, liabilities or expenses to be incurred in compliance with such request;
(d) the Trustee does
not comply with the request within 60 days after receipt of the request and the offer of indemnity; and
(e) during such
60-day period, the Holders of a majority in aggregate principal amount of Securities of such affected series then outstanding do not give the Trustee a direction that is inconsistent the request.
For purposes of this
Section 6.06
and
Section 6.08
hereof, the Trustee shall comply with TIA § 316(a)
in making any determination of whether the Holders of the required aggregate principal amount of Securities of such affected series then outstanding have concurred in any request or direction of the Trustee to pursue any remedy available to the
Trustee or the Holders with respect to this Indenture or the Securities of such series or otherwise under the law.
A Holder may not use
this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder.
Section 6.07
Rights of Holders to Receive Payment
. Notwithstanding any other provision of this Indenture, the right of any Holder of Securities of any series to receive payment of principal of, premium, if any, or interest on such Holder’s
Security on or after the respective due dates expressed on such Security, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
22
Section 6.08
Collection Suit by Trustee
. If an Event of Default with respect
to the Securities of any series in payment of principal, premium or interest specified in clause (a) or (b) of
Section 6.01
occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express
trust against the Issuer, a Guarantor or any other obligor of the affected Securities for the whole amount of principal, premium, if any, and accrued interest remaining unpaid, together with interest on overdue principal, premium, if any, and, to
the extent that payment of such interest is lawful, interest on overdue installments of interest, in each case at the rate specified in such Securities, and such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09
Trustee May File Proofs of Claim
. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under
Section 7.07
) and the Holders allowed in any judicial proceedings relative to the Issuer, a Subsidiary of the Issuer
or any Affiliate of any of them, its creditors or its property and shall be entitled and empowered to collect and receive any monies, securities or other property payable or deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agent and counsel,
and any other amounts due the Trustee under
Section 7.07
hereof. Nothing contained herein shall be deemed to empower the Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10
Priorities
. If the Trustee collects any money pursuant to this
Article VI
in respect of the Securities
of any series, it shall pay out the money in the following order:
First
: to the Trustee for all amounts due under
Section 7.07
hereof with respect to such series of Securities;
Second
: to Holders of the Securities of the applicable
series for amounts then due and unpaid for principal of, premium, if any, and interest on such Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal, premium, if any, and interest, respectively; and
Third
: to the
Issuer, or as a court of competent jurisdiction may direct.
The Trustee, upon prior written notice to the Issuer, may fix a record date
and payment date for any payment to Holders pursuant to this
Section 6.10
.
Section 6.11
Undertaking for
Costs
. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of the suit, and the court may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This
Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07
hereof, or a suit by Holders of more than 10.0% in principal amount of the Securities
of such affected series then outstanding.
23
Section 6.12
Restoration of Rights and Remedies
. If the Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then, and in every such case,
subject to any determination in such proceeding, the Issuer, the Guarantors, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Issuer, the
Guarantors, the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.13
Rights
and Remedies Cumulative
. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or wrongfully taken Securities in
Section 2.09
, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.14
Delay or Omission Not Waiver
. No delay or omission of the Trustee or of any Holder to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this
Article VI
or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE VII
TRUSTEE
Section 7.01
General
. The duties and responsibilities of the Trustee shall be as provided by the TIA and as set
forth herein. If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and shall use the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of its own affairs. Except during the continuance of an Event of Default, the Trustee need only perform those duties as are specifically set forth in this Indenture and the Securities, and no
implied duties shall be read into this Indenture against the Trustee. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not herein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this
Article VII
.
Section 7.02
Certain Rights of Trustee
. Subject to TIA §§ 315(a) through (d):
(a) the Trustee may conclusively rely, and shall be protected in acting or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by
the proper Person. The Trustee need not investigate any fact or matter stated in any such document;
24
(b) before the Trustee acts or refrains from acting, it may require an
Officer’s Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion;
(c) the Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any
attorney or agent appointed with due care;
(d) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities that might
be incurred by it in compliance with such request or direction;
(e) the Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be authorized or within its rights or powers conferred upon the Trustee under this Indenture;
(f) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer’s Certificate;
(g) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer personally or by agent or attorney at the
expense of the Issuer and shall incur no liability of any kind by reason of such inquiry or investigation;
(h) the Trustee
may consult with counsel of its selection and the advice of such counsel or any opinion of counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it thereunder in good faith and in
reliance thereon;
(i) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the series of
the Securities affected and this Indenture; and
(j) the rights, privileges, protections, immunities and benefits given to
the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, co-trustee, custodian and other Person employed to act hereunder.
Section 7.03
Individual Rights of Trustee
. The Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Issuer or any Guarantor or any Affiliates of the Issuer or any Guarantor with the same rights it would have if it were not the Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to TIA §§ 310(b) and 311.
Section 7.04
Trustee’s Disclaimer
. The Trustee
(i) makes no representation as to the validity or adequacy of this Indenture, the Note Guarantees or the Securities, (ii) shall not be accountable for the Issuer’s use or application of the proceeds from the Securities and
(iii) shall not be responsible for any statement in the Note Guarantees or the Securities other than its certificate of authentication.
25
Section 7.05
Notice of Defaults
. If a Default or Event of Default occurs and
is continuing with respect to the Securities of any series and if it is known to the Trustee, the Trustee will mail or deliver electronically to Holders of the Securities of such series a notice of the Default or Event of Default within 90 days
after it occurs in the manner and to the extent provided in TIA § 313(c). Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on, Securities of any series, the Trustee may and shall be
protected in withholding the notice if and so long as it in good faith determines that withholding the notice is in the interests of the Holders of the Securities of such series.
Section 7.06
Reports by Trustee to Holders
. Within 60 days after each calendar year following the date of this Indenture, and
for so long as Securities of any series remain outstanding, the Trustee will mail or deliver electronically to the Holders a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no event described in
TIA § 313(a) has occurred within the 12 months preceding the reporting date, no report need be transmitted). The Trustee also will comply with TIA § 313(b), and transmit by mail or deliver electronically all reports in
the manner required by TIA § 313(c). A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with
the Issuer.
Section 7.07
Compensation and Indemnity
.
(a) The Issuer and the Guarantors shall pay to the Trustee and each Paying Agent such compensation as shall be agreed upon in
writing for its services. The compensation of the Trustee and any Paying Agent shall not be limited by any law on compensation of a trustee of an express trust. The Issuer and the Guarantors shall reimburse the Trustee and each Paying Agent upon
request for all reasonable out-of-pocket expenses and advances incurred or made by the Trustee and each Paying Agent. Such expenses shall include the reasonable compensation and expenses of the Trustee’s or such Paying Agent’s agents and
counsel.
(b) The Issuer and the Guarantors shall indemnify the Trustee, its agents and officers, and each Agent against
any and all losses, liabilities, obligations, damages, penalties, judgments, actions, claims, suits, proceedings, such reasonable costs and expenses (including reasonable fees and disbursements of counsel) of any kind whatsoever which may be
incurred by the Trustee, its agents and officers, or such Agent arising out of or in connection with the acceptance or administration of its duties under this Indenture and Note Guarantees;
provided
,
however
, that the Issuer and the
Guarantors need not reimburse any expense or indemnify against any loss, obligation, damage, penalty, judgment, action, suit, proceeding, reasonable cost or expense (including reasonable fees and disbursements of counsel) of any kind whatsoever
which may be incurred by the Trustee or such Agent, as the case may be, in connection with any investigative, administrative or judicial proceeding (whether or not such indemnified party is designated a party to such proceeding) in which and to the
extent that it is determined that the Trustee, its agents and officers, or any Agent acted with negligence, bad faith or willful misconduct. The Trustee and each Agent shall notify the Issuer promptly of any claim of which the Responsible Officer of
the Trustee or an officer of such Agent has received written notice for which it may seek indemnity. Failure by the Trustee or any Agent to so notify the Issuer shall not relieve the Issuer and the Guarantors of their obligations hereunder, unless
the Issuer and the Guarantors are materially prejudiced thereby. The Issuer or such Guarantor shall defend the claim and the Trustee and such Agent, as the case may be, shall cooperate in the defense. Unless otherwise set forth herein, the Trustee
or any Agent may have separate counsel and the Issuer and the Guarantors shall pay the reasonable fees and expenses of such counsel. Neither the Issuer nor any Guarantor need pay for any settlement made without the Issuer’s consent.
26
(c) To secure the Issuer’s and the Guarantors’ payment obligations in
this
Section 7.07
, the Trustee and any Paying Agent shall have a lien prior to the Securities on all money or property held or collected by the Trustee or any Paying Agent, in its capacity as Trustee or Paying Agent, except money or
property held in trust by the Trustee or any Paying Agent to pay principal of, premium, if any, and interest on particular Securities.
(d) If the Trustee or Paying Agent incurs expenses or renders services after the occurrence of an Event of Default specified in
clause (d) or (e) of
Section 6.01
hereof, the expenses and the compensation for the services will be intended to constitute expenses of administration under Title 11 of the United States Bankruptcy Code or any applicable
federal or state law for the relief of debtors.
(e) The provisions of this
Section 7.07
shall survive the
termination of this Indenture and the resignation or removal of the Trustee.
Section 7.08
Replacement of Trustee
.
(a) A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the
successor Trustee’s acceptance of appointment as provided in
Section 7.09.
(b) The Trustee may resign at
any time by so notifying the Issuer in writing at least 30 days prior to the date of the proposed resignation. The Holders of a majority in principal amount of the outstanding Securities of any series may remove the Trustee with respect to the
Securities of such series by so notifying the Trustee in writing and may appoint a successor Trustee with the consent of the Issuer. The Issuer may at any time remove the Trustee with respect to the Securities of any series by Company Order given at
least 30 days prior to the date of the proposed removal.
(c) If the Trustee resigns or is removed with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with respect to the Securities of any series for any reason, the Issuer shall promptly appoint a successor Trustee with respect to the Securities of such series. Within one
year after the successor Trustee takes office with respect to the Securities of any series, the Holders of a majority in principal amount of the outstanding Securities of such series may appoint a successor Trustee to replace the successor Trustee
appointed by the Issuer. If the successor Trustee does not deliver its written acceptance required by the next succeeding paragraph of this
Section 7.08
within 30 days after the retiring Trustee resigns or is removed, the retiring
Trustee (at the expense of the Issuer), the Issuer or the Holders of a majority in principal amount of the outstanding Securities of such series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(d) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer,
immediately after the delivery of such written acceptance, subject to the lien provided in
Section 7.07
hereof, (i) the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee, (ii) the
resignation or removal of the retiring Trustee shall become effective and (iii) the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. A successor Trustee shall mail notice of its succession to
each Holder. The retiring Trustee shall have no responsibility or liability for any action or inaction of a successor Trustee.
(e) If the Trustee is no longer eligible under
Section 7.11
hereof, any Holder who satisfies the requirements of
TIA § 310(b) may petition any court of competent jurisdiction for the removal of the Trustee with respect to the Securities of any affected series and the appointment of a successor Trustee.
27
(f) The Issuer shall give notice of any resignation and any removal of the
Trustee and each appointment of a successor Trustee to all Holders. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.
(g) Notwithstanding replacement of the Trustee pursuant to this
Section 7.08
, the Issuer’s obligation under
Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
Section 7.09
Acceptance of Appointment
by Successor
. In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Issuer, the retiring Trustee and each successor Trustee with respect to the Securities of one
or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (ii) shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it
being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee will become effective to the extent provided therein, and each successor
Trustee will have all the rights, powers and duties of the Trustee under this Indenture with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Section 7.10
Successor Trustee by Merger, etc
.
If a Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate trust business to, another corporation, trust company or national banking association, the resulting, surviving or transferee corporation or national banking association without any
further act shall be the successor Trustee with the same effect as if the successor Trustee had been named as the Trustee herein.
Section 7.11
Eligibility
. This Indenture shall always have a Trustee who satisfies the requirements of
TIA §§ 310(a)(1), (2) and (5). The Trustee (together with its parent) shall have a combined capital and surplus of at least $25.0 million as set forth in its most recent published annual report of condition.
Section 7.12
Money Held in Trust
. The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law and except for money held in trust under
Article VIII
and
Article X
of this Indenture.
ARTICLE VIII
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01
Option to Effect Legal Defeasance or Covenant Defeasance
. The Issuer
may at any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officer’s Certificate, elect to have either
Section 8.02
or
8.03
hereof be applied to all outstanding Securities of any series
upon compliance with the conditions set forth below in this
Article VIII
.
Section 8.02
Legal Defeasance and
Discharge
. Upon the Issuer’s exercise under
Section 8.01
hereof of the option applicable to this
Section 8.02
, the Issuer and each of the Guarantors
28
will, subject to the satisfaction of the conditions set forth in
Section 8.04
hereof, be deemed to have been discharged from their obligations with respect to all outstanding
Securities of such series (including any Note Guarantees of such Securities) on the date the conditions set forth in
Section 8.04
hereof are satisfied (hereinafter, “
Legal Defeasance
”). For this purpose, Legal Defeasance
means that the Issuer and the Guarantors will be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities of such series (including any Note Guarantees of such Securities), which will thereafter be deemed
to be “outstanding” only for the purposes of
Section 8.05
hereof and the other Sections of this Indenture referred to in clauses (a) and (b) below, and to have satisfied all their other obligations under such
Securities, Note Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which will survive until otherwise
terminated or discharged hereunder:
(a) the rights of Holders of outstanding Securities of such series to receive payments
in respect of the principal of, or interest or premium, if any, on such Securities when such payments are due from the trust referred to in
Section 8.04
hereof;
(b) the Issuer’s obligations with respect to such Securities under Article II and Section 4.02 hereof;
(c) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and the obligations of the Issuer and the
Guarantors in connection therewith; and
(d) this
Article VIII
.
Subject to compliance with this
Article VIII
, the Issuer may exercise its option under this
Section 8.02
notwithstanding
the prior exercise of its option under
Section 8.03
hereof.
Section 8.03
Covenant Defeasance
. Upon the
Issuer’s exercise under
Section 8.01
hereof of the option applicable to this
Section 8.03
, the Issuer and each of the Guarantors shall, subject to the satisfaction of the conditions set forth in
Section 8.04
hereof, be released from their obligations under
Sections 4.03
and
4.05
hereof with respect to the outstanding Securities of the applicable series on and after the date the conditions set forth in
Section 8.04
hereof are
satisfied (hereinafter, “
Covenant Defeasance
”), and the Securities of such series will thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that Securities of such series will not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Securities of the applicable series and the Note Guarantees of such Securities, the Issuer and the Guarantors may omit to comply with and will have no
liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under
Section 6.01
hereof, but, except as specified above, the remainder of this Indenture, the Securities
of such series and the Note Guarantees of such Securities will be unaffected thereby. In addition, upon the Issuer’s exercise under
Section 8.01
hereof of the option applicable to this
Section 8.03
, subject to the
satisfaction of the conditions set forth in
Section 8.04
hereof,
Section 6.01(c)
hereof will not constitute an Event of Default.
29
Section 8.04
Conditions to Legal or Covenant Defeasance
.
(a) In order to exercise either Legal Defeasance or Covenant Defeasance under either
Section 8.02
or
8.03
hereof:
(i) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the
Securities of the applicable series, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of
independent public accountants, to pay the principal of, premium, if any, and interest on the then outstanding Securities of such series on the Stated Maturity thereof or on the applicable Redemption Date, as the case may be, and the Issuer must
specify whether the Securities of such series are being defeased to such Stated Maturity or to a particular Redemption Date;
(ii) in the case of an election under
Section 8.02
hereof, the Issuer must deliver to the Trustee an Opinion of
Counsel (or Opinions of Counsel) confirming that (A) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of issuance of the Securities of the applicable series, there
has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel (or Opinions of Counsel) shall confirm that, the Holders of the Securities of such series that are then
outstanding will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred;
(iii) in the case of an election under
Section 8.03
hereof, the Issuer must deliver to the Trustee an Opinion of Counsel (or Opinions of Counsel) confirming that the Holders of the then outstanding Securities of the applicable series will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(iv) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or
Event of Default resulting from the borrowing of funds to be applied to such deposit or liens securing such borrowing) and the deposit will not result in a breach or violation of, or constitute a Default under, any other instrument to which the
Issuer is a party or by which the Issuer is bound;
(v) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a Default under, any material agreement or instrument (other than this Indenture) to which Parent or any of its Subsidiaries is a party or by which Parent or any of its Subsidiaries is bound;
(vi) the Issuer must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer
with the intent of preferring the Holders of Securities of the applicable series over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or others; and
(vii) the Issuer must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, have been complied with.
30
Section 8.05
Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions
. Subject to
Section 8.06
hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of
this
Section 8.05
, the “
Trustee
”) pursuant to
Section 8.04
hereof in respect of the outstanding Securities of any series will be held in trust and applied by the Trustee, in accordance with the provisions of
the Securities of such series and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become
due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Issuer will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to
Section 8.04
hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding
Securities of the applicable series.
Notwithstanding anything in this
Article VIII
to the contrary, the Trustee will deliver or
pay to the Issuer from time to time upon the request of the Issuer any money or non-callable Government Securities held by it as provided in
Section 8.04
hereof which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a)(i)
hereof), are in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06
Repayment to Company
. Any money deposited with
the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any, or interest on any Security and remaining unclaimed for two years after such principal, premium, if any, or interest has
become due and payable shall, subject to applicable escheat law, be paid to the Issuer on its request or (if then held by the Issuer) will be discharged from such trust; and the Holder of such Security will thereafter be permitted to look only to
the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, will thereupon cease;
provided
,
however
, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and
that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 8.07
Reinstatement
. If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government
Securities with respect to the Securities of any series in accordance with
Section 8.02
or
8.03
hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the obligations of the Issuer and the Guarantors under this Indenture, the Securities of such series and the Note Guarantees of such Securities will be revived and reinstated as though no deposit had
occurred pursuant to
Section 8.02
or
8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 8.02
or
8.03
hereof, as the case may be;
provided
,
however
, that, if the Issuer makes any payment of principal of, premium, if any, or interest on any Security of such series following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the
Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.
31
ARTICLE IX
NOTE GUARANTEES
Section 9.01
Note Guarantee
.
(a) Subject to this
Article IX
, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each
Holder of a Security of a series authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities of such series or the obligations of the
Issuer hereunder or thereunder, that:
(i) the principal of, premium, if any, and interest on, the Securities of such
series will be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Securities of such series, if any, if lawful, and all other obligations
of the Issuer to such Holder or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of Securities of such series or any of such other obligations, that
same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, redemption or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will
be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the
Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with
a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in the Securities of any series and this Indenture.
(c) If any Holder or the
Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid to either the Trustee or
such Holder, the applicable Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of
the obligations guaranteed hereby may be accelerated as provided in
Article VI
hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such obligations as provided in
Article VI
hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the
Guarantors for the purpose of the applicable Note Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
32
(e) Each Note Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any
significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities of the applicable series are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on such Securities or the Note Guarantees of such series, whether as a “voidable preference,” “fraudulent
transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Securities of the applicable series shall, to the fullest
extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(f) In case any provision of any Note Guarantee shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(g) The Note Guarantee
issued by any Guarantor shall be a general unsecured senior obligation of such Guarantor and shall rank equally in right of payment with all existing and future senior indebtedness of such Guarantor, if any.
(h) Each payment to be made by a Guarantor in respect of its Note Guarantee shall be made without set-off, counterclaim,
reduction or diminution of any kind or nature.
Section 9.02
Limitation on Guarantor Liability
. Each Guarantor, and by
its acceptance of Securities, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of the United States Bankruptcy Code,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby
irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws,
and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this
Article IX
, result in the
obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.
Section 9.03
Execution and Delivery of Guarantee
.
Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 9.01
hereof will remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee.
If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Securities of a
series, the Note Guarantee of such Securities will be valid nevertheless.
Upon execution by a new Guarantor of an indenture supplemental
hereto substantially in the form reasonably satisfactory to the Trustee, the Note Guarantee of such Guarantor set forth in this Indenture shall be deemed duly delivered, without any further action by any Person, on behalf of such Guarantor.
33
The delivery of any Security of a series by the Trustee, after the authentication thereof
hereunder, will constitute due delivery of the Note Guarantee set forth in this Indenture or any supplemental indenture on behalf of the Guarantors who are signatories thereto.
Section 9.04
Releases
. The Note Guarantees of a Guarantor (other than Parent) will be released:
(a) in connection with any sale, disposition or transfer of all or substantially all of the assets of that Guarantor (including
by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Issuer or a Guarantor;
(b) in connection with any sale, disposition or transfer of all of the Capital Stock of that Guarantor to a Person that is not
(either before or after giving effect to such transaction) the Issuer or a Guarantor;
(c) upon the release or discharge of
such Guarantor’s guarantee of the Credit Agreement or under the Debt that triggered such Guarantor’s Note Guarantee;
(d) upon the liquidation or dissolution of such Guarantor; provided that no Default or Event of Default shall occur as a result
thereof or has occurred and is continuing; or
(e) upon Legal Defeasance or Covenant Defeasance as provided in
Article VIII
hereof or satisfaction and discharge of this Indenture as provided in
Article X
hereof.
Any Guarantor not
released from its obligations under its Note Guarantees as provided in this
Section 9.04
will remain liable for the full amount of principal of and interest and premium, if any, on the Securities of the applicable series and for the
other obligations of any Guarantor under this Indenture for the applicable series as provided in this
Article IX
.
ARTICLE X
SATISFACTION AND DISCHARGE
Section 10.01
Satisfaction and Discharge
. This Indenture will be discharged and will cease to be of further effect as to all
Securities of any series issued hereunder, when:
(a) either:
(i) all Securities of such series that have been authenticated, except lost, stolen or destroyed Securities of such series that
have been replaced or paid and Securities of such series for whose payment money has been deposited in trust and thereafter repaid to the Issuer, have been delivered to the Trustee for cancellation; or
(ii) all Securities of such series that have not been delivered to the Trustee for cancellation have become due and payable by
reason of the mailing of a notice of redemption or otherwise or will become due and payable within one year and the Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the
Holders of such Securities, cash in U.S. dollars, non-callable Government Securities or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness
on the Securities of such series not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the Stated Maturity or redemption, as the case may be;
(b) no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
34
deposit or liens securing such borrowing) and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Issuer is a party or by
which the Issuer is bound;
(c) the Issuer has paid or caused to be paid all sums payable by it under this Indenture with
respect to the Securities of such series; and
(d) the Issuer has delivered irrevocable written instructions to the Trustee
under this Indenture to apply the deposited money toward the payment of the Securities of such series at Stated Maturity or the Redemption Date, as the case may be.
In addition, the Issuer must deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all conditions
precedent to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if money
has been deposited with the Trustee pursuant to clause (a)(ii) of this
Section 10.01
, the provisions of
Section 8.06
hereof and
Section 10.02
hereof will survive. In addition, nothing in this
Section 10.01
will be deemed to discharge those provisions of
Section 7.07
hereof, that, by their terms, survive the satisfaction and discharge of this Indenture.
Section 10.02
Application of Trust Money
. Subject to the provisions of
Section 8.06
hereof, all money deposited
with the Trustee pursuant to
Section 10.01
hereof shall be held in trust and applied by it, in accordance with the provisions of the applicable Securities and this Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest for whose payment such money has been deposited with the Trustee;
provided
that such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to
apply any money or Government Securities in accordance with
Section 10.01
hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the obligations of the Issuer and the Guarantors under this Indenture and the applicable Securities shall be revived and reinstated as though no deposit had occurred pursuant to
Section 10.01
hereof;
provided
that if the Issuer has made any payment of principal of, premium, if any, or interest on any Securities because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.
ARTICLE XI
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 11.01
Without Consent of Holders
. Notwithstanding
Section 11.02
hereof, the Issuer, the Guarantors and
the Trustee may amend or supplement this Indenture with respect to any series of Securities or the Note Guarantees of any such series without notice to or the consent of any Holder to:
(a) cure any ambiguity, omission, mistake, defect or inconsistency;
(b) provide for uncertificated Securities in addition to or in place of certificated Securities;
(c) provide for the assumption of the obligations of the Issuer or a Guarantor to Holders of such Securities and the Note
Guarantees of such Securities in the case of a merger or consolidation or a sale, assignment, transfer, conveyance, lease or other disposition of all or substantially all of the assets of the Issuer or such Guarantor, as applicable, in accordance
with the terms of this Indenture;
35
(d) make any change that would provide any additional rights or benefits to the
Holders of such Securities or that does not adversely affect the legal rights under this Indenture of any such Holder;
(e)
comply with requirements of the Commission in order to effect or maintain the qualification of this Indenture under the TIA;
(f) conform the text of this Indenture, the Securities of any series or the Note Guarantees of any series to any provision of a
description of such Securities in the prospectus or prospectus supplement or other document relating to the offering of such Securities to the extent that such provision in such description was intended to be a verbatim recitation of a provision of
this Indenture or the Securities of such series;
(g) add a Guarantor or release any Guarantor from its Note Guarantee if
such release is in accordance with the terms of this Indenture; or
(h) provide for the issuance of additional Securities
in accordance with the limitations set forth in this Indenture.
Section 11.02
With Consent of Holders
.
(a) Except as set forth in
Section 11.01
and
11.02(b)
hereof, this Indenture, the Securities of any series
and the Note Guarantees of any series of Securities may be amended or supplemented with the consent of the Holders of a majority in aggregate principal amount of Securities of such series then outstanding (including consents obtained in connection
with a purchase of, or tender offer or exchange offer for, the Securities of any applicable series), and any existing Default or Event of Default or compliance with any provision of this Indenture, the Securities of any series or the Note Guarantees
of any series of Securities may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Securities of such series (including consents obtained in connection with a purchase of, or tender offer or
exchange offer for, the Securities of any applicable series).
(b) Without the consent of each Holder of a series of
Securities affected, an amendment, supplement or waiver, including a waiver pursuant to
Section 6.04
hereof, may not:
(i) change the Stated Maturity of the principal of, or any installment of interest on, any Security of such series;
(ii) reduce the principal amount of, or premium, if any, or interest on, any Security of such series;
(iii) change the place or currency of payment of principal of, or premium, if any, or interest on, any Security of such series;
(iv) impair the right to institute suit for the enforcement of any payment on or with respect to any Security of such
series;
(v) reduce the percentage or principal amount of the outstanding Securities of such series, the consent of whose
Holders is necessary to modify or amend this Indenture with respect to such series or waive compliance with certain provisions of this Indenture or waive certain Defaults with respect to such series;
(vi) waive a Default in the payment of principal of, premium, if any, or interest on, any Security of such series; or
36
(vii) release any Guarantor from any of its obligations under its Note Guarantee
or this Indenture, except as set forth under
Article IX
hereof;
(c) It shall not be necessary for the consent
of the Holders under this
Section 11.02
to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
(d) After an amendment, supplement or waiver under this
Section 11.02
becomes effective, the Issuer shall mail to
the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. The Issuer will mail supplemental indentures to Holders upon request. Any failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental indenture or waiver.
Section 11.03
Revocation and
Effect of Consent
. Until an amendment or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of such Security or portion of such Security that evidences the same Debt as the
Security of the consenting Holder, even if notation of the consent is not made on such Security. However, any such Holder or subsequent Holder may revoke the consent as to its Security or portion of its Security. Such revocation shall be effective
only if the Trustee receives the notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver shall become effective on receipt by the Trustee of written consents from the Holders of
the requisite percentage in principal amount of the outstanding Securities of the applicable series.
The Issuer may, but shall not be
obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver. If a record date is fixed, then, notwithstanding the last two sentences of the immediately preceding paragraph,
those Persons who were Holders of the applicable series at such record date (or their duly designated proxies) and only those Persons shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind every Holder of the applicable series unless it is of the type
described in any of clauses (i) through (vii) of
Section 11.02(b)
hereof. In case of an amendment or waiver of the type described in clauses (i) through (vii) of
Section 11.02(b)
hereof, the amendment or
waiver shall bind each Holder who has consented to it and every subsequent Holder of a Security of the applicable series that evidences the same indebtedness as the Security of the consenting Holder.
Section 11.04
Notation on or Exchange of Securities
. If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security about the changed terms and return it to the Holder and the Trustee may place an appropriate notation on any Security of
the same series thereafter authenticated. Alternatively, if the Issuer or the Trustee so determines, the Issuer in exchange for the Security shall issue and the Trustee shall authenticate a new Security of the same series that reflects the changed
terms. Failure to make the appropriate notation or issue a new Security shall not affect the validity and effect of such amendment, supplement or waiver.
Section 11.05
Trustee to Sign Amendments, Etc
.
The Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this
Article XI
is authorized or permitted by this Indenture. Subject to the preceding sentence,
the Trustee shall sign such amendment, supplement or waiver if the same does not adversely affect the rights of the Trustee. The Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver that affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.
37
Section 11.06
Conformity with TIA
. Every supplemental indenture executed
pursuant to this
Article XI
shall conform to the requirements of the TIA as then in effect.
ARTICLE XII
MISCELLANEOUS
Section 12.01
TIA Controls
. If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA § 318(c), the imposed duties will control.
Section 12.02
Notices
. Any notice or communication shall
be sufficiently given if in writing and delivered in person or mailed by first class mail, postage prepaid, addressed as follows:
If to
the Issuer or any Guarantor:
Kansas City Southern
427 West 12th Street
Kansas
City, MO 64105
Facsimile: (816) 983-1198
Attention: Treasurer
With a
copy to:
White & Case LLP
1155 Avenue of the Americas
New
York, New York 10036
Facsimile: (212) 354-8113
Email: gkashar@whitecase.com
Attention: Gary Kashar, Esq.
If to the Trustee:
U.S.
Bank National Association
225 Asylum Street
23rd Floor
Hartford, CT 06103
Facsimile: (860) 241-6881
Email: michaelhopkins1@usbank.com
Attention: Michael Hopkins
The
Issuer, any Guarantor or the Trustee, by notice to the others may designate additional or different addresses for subsequent notices or communications.
All notices or communications to a Holder shall be deemed to have been given upon the mailing by first class mail, postage prepaid, of such
notices to Holders at their registered addresses as recorded in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed in the Security for the giving of such notice. Copies of any such communication
or notice to a Holder shall also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency with respect to other Holders. Except for a notice to the Trustee, which is deemed given only when received, and except as otherwise provided in this Indenture, if a notice or communication
is mailed in the manner provided in this
Section 12.02
, it is duly given, whether or not the addressee receives it.
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Where this Indenture provides for notice in any manner, such notice may be waived in writing by
the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. All communication delivered to
the Trustee shall be deemed effective when actually received by the Trustee.
Neither the failure to give any notice to a particular
Holder, nor any defect in any notice given to any particular Holder, shall affect the sufficiency of any notice given to another Holder.
Section 12.03
Certificate and Opinion as to Conditions Precedent
. Upon any request or application by the Issuer to the
Trustee to take or refrain from taking any action under this Indenture, the Issuer shall furnish to the Trustee, if the Trustee so requests:
(a) an Officer’s Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent have been complied with.
Section 12.04
Statements Required in
Certificate or Opinion
. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) a statement that each person signing such certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which
the statement or opinion contained in such certificate or opinion is based;
(c) a statement that, in the opinion of each
such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of each such person, such condition or covenant has been complied with;
provided, however,
that, with respect to matters of fact, an Opinion of Counsel may rely on an Officer’s Certificate or certificates of public officials.
Section 12.05
Rules by Trustee and Agents
. The Trustee may make reasonable rules for action by or at a meeting of Holders.
The Paying Agent or Registrar may make reasonable rules for its functions.
Section 12.06
Governing Law
. THE INTERNAL
LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE SECURITIES OF ANY SERIES AND THE NOTE GUARANTEES.
Section 12.07
No Adverse Interpretation of Other Agreements
. This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Issuer or any of the Guarantors. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
39
Section 12.08
No Personal Liability of Incorporators, Stockholders, Officers,
Directors, or Employees
. No recourse for the payment of the principal of, premium, if any, or interest on any of the Securities of any series issued under this Indenture or for any claim based on this Indenture or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of the Issuer or any Guarantor in this Indenture, or in the Securities of any series or the Note Guarantees or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer, director, employee or controlling person of the Issuer, any Guarantor or of any successor Person thereof. Each Holder, by accepting the Securities of the applicable series, waives
and releases all such liability.
Section 12.09
Successors
. All agreements of the Issuer in this Indenture and the
Securities of any series shall bind their successors. All agreements of the Trustee in this Indenture shall bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in
Section 9.04
hereof.
Section 12.10
Evidence of Ownership
. The Issuer, the Trustee and any agent of the
Issuer or the Trustee may deem and treat the Holder of any Unregistered Security and the Holder of any coupon as the absolute owner of such Unregistered Security or coupon (whether or not such Unregistered Security or coupon shall be overdue) for
the purpose of receiving payment thereof or on account thereof and for all other purposes, and neither the Issuer, the Trustee, nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary. The fact of the holding by
any Holder of an Unregistered Security, and the identifying number of such Security and the date of his holding the same, may be proved by the production of such Security or by a certificate executed by any trust company, bank, banker or recognized
securities dealer wherever situated satisfactory to the Trustee, if such certificate shall be deemed by the Trustee to be satisfactory. Each such certificate shall be dated and shall state that on the date thereof a Security bearing a specified
identifying number was deposited with or exhibited to such trust company, bank, banker or recognized securities dealer by the Person named in such certificate. Any such certificate may be issued in respect of one or more Unregistered Securities
specified therein. The holding by the Person named in any such certificate of any Unregistered Securities specified therein shall be presumed to continue for a period of one year from the date of such certificate unless at the time of any
determination of such holding (1) another certificate bearing a later date issued in respect of the same Securities shall be produced or (2) the Security specified in such certificate shall be produced by some other Person or (3) the
Security specified in such certificate shall have ceased to be outstanding. Subject to
Article VII
, the fact and date of the execution of any such instrument and the amount and numbers of Securities held by the Person so executing such
instrument may also be proven in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in any other manner which the Trustee may deem sufficient.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may deem and treat the Person in whose name any Registered Security shall
be registered upon the Security Register for such series as the absolute owner of such Registered Security (whether or not such Registered Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, premium or interest on such Registered Security and for all other purposes; and neither the Issuer nor the Trustee nor any agent of
the Issuer or the Trustee shall be affected by any notice to the contrary.
Section 12.11
Counterpart Originals
. The
parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery of an executed counterpart of a signature page to this Indenture by facsimile, .pdf
attachment, email or other electronic means shall be effective as delivery of a manually executed counterpart of this Indenture.
40
Section 12.12
Severability
. In case any provision in this Indenture or in the
Securities of any series shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 12.13
Table of Contents, Headings, Etc
.
The Table of Contents, Cross-Reference Table and
headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms and provisions hereof.
[Signature Page Follows]
41
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the date first written above.
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THE KANSAS CITY SOUTHERN RAILWAY COMPANY, as the Issuer
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By:
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/s/ Michael W. Cline
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Name: Michael W. Cline
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Title: Vice President & Treasurer
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KANSAS CITY SOUTHERN, as Guarantor and Parent
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By
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/s/ Michael W. Upchurch
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Name: Michael W. Upchurch
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Title: Executive Vice President and Chief Financial Officer
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GATEWAY EASTERN RAILWAY COMPANY, as Guarantor
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By
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/s/ Michael W. Cline
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Name: Michael W. Cline
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Title: Vice President and Treasurer
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SOUTHERN DEVELOPMENT COMPANY, as Guarantor
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By
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/s/ Michael W. Upchurch
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Name: Michael W. Upchurch
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Title: Vice President, Chief Financial Officer and Treasurer
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THE KANSAS CITY NORTHERN RAILWAY COMPANY, as Guarantor
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By
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/s/ Michael W. Cline
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Name: Michael W. Cline
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Title: Vice President and Treasurer
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TRANS-SERVE, INC., as Guarantor
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By
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/s/ Michael W. Cline
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Name: Michael W. Cline
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Title: Vice President and Treasurer
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[Base Indenture Signature
Page]
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KCS HOLDINGS I, INC., as Guarantor
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By
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/s/ Michael W. Cline
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Name: Michael W. Cline
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Title: Vice President and Treasurer
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KCS VENTURES I, INC., as Guarantor
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By
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/s/ Michael W. Cline
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Name: Michael W. Cline
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Title: Vice President and Treasurer
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SOUTHERN INDUSTRIAL SERVICES, INC., as Guarantor
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By
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/s/ Michael W. Upchurch
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Name: Michael W. Upchurch
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Title: Vice President, Chief Financial Officer and Treasurer
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VEALS, INC., as Guarantor
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By
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/s/ Michael W. Upchurch
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Name: Michael W. Upchurch
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Title: Vice President, Chief Financial Officer and Treasurer
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PABTEX, INC., as Guarantor
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By
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/s/ Michael W. Upchurch
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Name: Michael W. Upchurch
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Title: Vice President, Chief Financial Officer and Treasurer
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ Crystal Maston
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Name: Crystal Maston
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Title: Vice President
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[Base Indenture Signature
Page]
Exhibit 4.2
EXECUTION VERSION
Dated as of
July 27, 2015
First Supplemental Indenture
among
The Kansas City
Southern Railway Company
as Issuer
Each of the Guarantors Party Hereto
and
U.S. Bank National
Association,
as Trustee
4.950% Senior Notes due 2045
FIRST SUPPLEMENTAL INDENTURE (the “
First Supplemental Indenture
”), dated as of July 27,
2015, among THE KANSAS CITY SOUTHERN RAILWAY COMPANY, a Missouri corporation (the “
Issuer
”), the guarantors party hereto and U.S. BANK NATIONAL ASSOCIATION, a national banking association duly incorporated and existing under the
laws of the United States of America, as Trustee (together with its successors and assigns, in such capacity, the “
Trustee
”).
W I T N E S S E T H :
WHEREAS, the Issuer, the guarantors party hereto and the Trustee have heretofore executed and delivered an Indenture, dated as of
July 27, 2015 (the “
Original Indenture
” and, as hereby supplemented, the “
Indenture
”), providing for the issuance from time to time of one or more series of the Issuer’s Securities;
WHEREAS, pursuant to the terms of the Indenture, the Issuer desires to provide for the establishment of a series of Securities to be
designated as the “4.950% Senior Notes due 2045” (herein referred to as the “
2045 Notes
”), the form and substance of the 2045 Notes and the terms, provisions and conditions thereof to be set forth as provided in the
Original Indenture and this First Supplemental Indenture;
WHEREAS, Section 11.01(h) of the Original Indenture provides that the
Issuer and the Trustee may provide for the issuance of additional Securities in accordance with the Original Indenture;
WHEREAS,
Section 2.03 of the Original Indenture provides that various matters with respect to any series of Securities issued under the Indenture may be established in a supplemental indenture to the Original Indenture; and
WHEREAS, all acts and things necessary to make this First Supplemental Indenture, when duly executed and delivered, a valid and binding
instrument in accordance with its terms and for the purposes herein expressed, have been done and performed; and the execution and delivery of this First Supplemental Indenture have been in all respects duly authorized.
NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained and intending to be legally bound, the parties to this
First Supplemental Indenture hereby agree as follows:
ARTICLE I
RELATION TO INDENTURE; ADDITIONAL DEFINITIONS
Section 1.01
Relation to Indenture
. This First Supplemental Indenture constitutes an integral part of the Indenture.
Section 1.02
Additional Definitions
. For all purposes of this First Supplemental Indenture, capitalized terms used herein shall
have the respective meanings specified below or, if not specified below, shall have the meaning specified in the Original Indenture.
“
2045 Notes
” has the meaning set forth in the second paragraph of the Recitals hereof.
First Supplemental
Indenture
“
Below Investment Grade Ratings Event
” means, on any day within the 60-day
period (which period shall be extended so long as the rating of the 2045 Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies) after the earlier of (1) the occurrence of a Change of Control or
(2) public notice by the Issuer or Parent of the occurrence of a Change of Control or Parent’s intention to effect a Change of Control, that the 2045 Notes are rated below Investment Grade by two of the three Rating Agencies.
Notwithstanding the foregoing, a Below Investment Grade Ratings Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a
Below Investment Grade Ratings Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly
confirm or inform the Trustee in writing at the Issuer’s or Parent’s request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable
Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the ratings event).
“
Business Day
” means any calendar day that is not a Saturday, Sunday or legal holiday in New York, New York and on which
banking institutions and trust companies are open for business in New York, New York.
“
Change of Control
” means the
consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act), other than
Parent and its Subsidiaries, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the combined voting power of the total Voting Stock of Parent or other Voting Stock
into which Parent’s Voting Stock is reclassified, consolidated, exchanged or changed measured by voting power rather than number of shares.
“
Change of Control Payment Date
” has the meaning assigned to it in
Section 4.07(c)
hereof.
“
Change of Control Repurchase Event
” means the occurrence of both a Change of Control and a Below Investment Grade Ratings
Event.
“
Comparable Treasury Issue
” means the United States Treasury security selected by an Independent Investment
Banker as having a maturity comparable to the remaining term (as measured from the date of redemption) (“
Remaining Life
”) of the 2045 Notes to be redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the 2045 Notes.
“
Comparable Treasury Price
” means, with respect to any redemption date, the average of the Reference Treasury Dealer
Quotations for such redemption date.
“
Consolidated Net Assets
” means total assets after deducting therefrom all current
liabilities as set forth on the most recent publicly filed balance sheet of Parent and its consolidated subsidiaries and computed in accordance with generally accepted accounting principles.
“
Global Note
” means a Security evidencing all or part of the 2045 Notes, substantially in the form attached as
Exhibit
A
.
“
Guarantors
” means Parent and the subsidiaries of Parent that execute a Note Guarantee, and their respective
successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of the Indenture.
“
Independent Investment Banker
” means one of the Reference Treasury Dealers appointed by the Issuer.
2
“
Investment Grade
” means a rating of Baa3 or better by Moody’s (or its
equivalent under any successor rating categories of Moody’s), a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P), a rating of BBB- or better by Fitch (or its equivalent under any successor
rating categories of Fitch) and the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Issuer.
“
Interest Payment Dates
” means February 15 and August 15 of each year, or if any such day is not a Business Day,
the next succeeding Business Day, until maturity, beginning on February 15, 2016.
“
Issue Date
” means July 27,
2015.
“
Maturity Date
” has the meaning set forth in
Section 2.03
hereof.
“
Note Guarantee
” means each Guarantee of the obligations with respect to the 2045 Notes issued by a Person pursuant to the
terms of the Indenture.
“
Original Indenture
” has the meaning set forth in the first paragraph of the Recitals hereof.
“
Rating Agency
” means (1) each of Moody’s, S&P and Fitch; and (2) if any of Moody’s, S&P or
Fitch ceases to rate the 2045 Notes or fails to make a rating of the 2045 Notes publicly available for reasons outside of the Issuer’s control, a “nationally recognized statistical rating organization” within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Issuer (as certified by a resolution of the Issuer’s board of directors) as a replacement agency for Moody’s, S&P or Fitch, or all of them, as the case may be.
“
Reference Treasury Dealer
” means each of Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Morgan Stanley & Co. LLC (or their respective affiliates that are primary Government Securities dealers) and their respective successors;
provided, however,
that if any Reference Treasury Dealer is not at the
applicable time a primary Government Securities dealer (a “Primary Treasury Dealer”), the Issuer shall substitute therefor another Primary Treasury Dealer selected by it.
“
Reference Treasury Dealer Quotations
” means, with respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue for the 2045 Notes (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent
Investment Banker by such Reference Treasury Dealer at 5:00 p.m. New York City time on the third Business Day preceding such Redemption Date.
“
Treasury Rate
” means, on any Redemption Date, (i) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the applicable Comparable Treasury Issue (if no
maturity is within three months before or after the Remaining Life, yields for the two published maturities most closely corresponding to such Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month) or (ii) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum
equal to the semiannual equivalent yield to maturity of the related Comparable Treasury Issue, calculated using a price for that Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date. The Treasury Rate shall be calculated on the third Business Day preceding the redemption date.
3
All references herein to Articles, Sections or Exhibits, unless otherwise specified, refer
to the corresponding Articles, Sections or Exhibits of this First Supplemental Indenture. The terms “
herein
,” “
hereof
,” “
hereunder
” and other words of similar import refer to this First Supplemental
Indenture.
ARTICLE II
THE SERIES OF NOTES
Section 2.01
Title of the Notes
. The 2045 Notes shall be designated as the “4.950% Senior Notes due 2045.”
Section 2.02
No Limitation on Aggregate Principal Amount
. There shall be no limitation on the aggregate principal amount of 2045
Notes that may be outstanding.
Section 2.03
Stated Maturity
. The Stated Maturity of the 2045 Notes shall be August 15,
2045 (the “
Maturity Date
”).
Section 2.04
Interest and Interest Rate
. (a) The 2045 Notes shall bear
interest at the rate of 4.950% per annum, and interest will accrue from the most recent Interest Payment Date on which interest has been paid or, if no interest has been paid, from and including the Issue Date. Such interest shall be payable
semiannually in arrears, on the Interest Payment Dates. Interest on the 2045 Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months. Interest accrued on the 2045 Notes from the last Interest Payment Date before the
Maturity Date shall be payable on the Maturity Date.
(b) The interest so payable on any Interest Payment Date shall be paid to the
Persons in whose names the 2045 Notes are registered at the close of business on the record date for such Interest Payment Date, being the immediately preceding February 1 and August 1, as the case may be.
Section 2.05
Place of Payment
.
The place or places where the principal of and interest on the 2045 Notes shall be payable
is the office or agency of the Issuer maintained for such purpose, which shall initially be the Corporate Trust Office of the Trustee, and any other place or places designated by the Issuer pursuant to the Indenture;
provided
that while the
2045 Notes are represented by one or more Registered Global Securities registered in the name of the Depositary, or its nominee, the Issuer will cause payments of principal and interest on such Registered Global Securities to be made to the
Depositary or its nominee, as the case may be, by wire transfer to the extent, in the funds and in the manner required by agreements with, or regulations or procedures prescribed from time to time by the Depositary or its nominee, and otherwise in
accordance with such agreements, regulations or procedures.
Section 2.06
Place of Registration or Exchange
. The place where
the Holders of the 2045 Notes may present the 2045 Notes for registration of transfer or exchange and may make notices and demands to or upon the Issuer in respect of the 2045 Notes shall be the Corporate Trust Office of the Trustee.
Section 2.07
Global Notes
. (a) The 2045 Notes shall be issuable in whole or in part in the form of one or more Global Notes
in definitive, fully registered, book-entry form, without interest coupons. The Global Note shall be deposited on the Issue Date with, or on behalf of, the Depositary.
(b) The Depository Trust Company shall initially serve as Depositary with respect to the Global Note. Such Global Note shall bear the legend
set forth in the form attached as
Exhibit A
.
4
Section 2.08
Form of Securities
. The Global Note shall be substantially in the form
attached as
Exhibit A
.
Section 2.09
Additional 2045 Notes
. The Issuer may issue additional 2045 Notes
under the Indenture. Each of the 2045 Notes issued on the Issue Date and any additional 2045 Notes subsequently issued shall each be treated as a single class for all purposes under the Indenture, unless otherwise provided in the Indenture;
provided
,
however
, that any additional 2045 Notes that are not fungible with existing 2045 Notes for U.S. federal income tax purposes will have a separate CUSIP, ISIN and other identifying number from the
existing 2045 Notes. Unless the context otherwise requires, for all purposes of the Indenture, references to the 2045 Notes include any additional 2045 Notes actually issued.
ARTICLE III
REDEMPTION
OF THE 2045 NOTES
Section 3.01
Optional Redemption
. (a) Prior to February 15, 2045 (the date that is six
months prior to the Maturity Date), the 2045 Notes will be redeemable in whole or in part at any time and from time to time, at the Issuer’s option, at a redemption price equal to the greater of:
(i) 100% of the principal amount of the 2045 Notes to be redeemed and
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the 2045 Notes to be
redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the then-current Treasury Rate, plus 30 basis points, plus
accrued interest to but excluding the redemption date.
(b) On or after February 15, 2045 (the date that is six months prior to the
Maturity Date), the 2045 Notes will be redeemable in whole or in part at any time and from time to time, at the Issuer’s option, at a redemption price equal to 100% of the principal amount of the 2045 Notes to be redeemed plus accrued interest
to but excluding the redemption date.
(c) Any redemption pursuant to this
Section 3.01
shall be made pursuant to the
provisions of Sections 3.01 through 3.07 of the Original Indenture;
provided
,
however
, that if less than all of the 2045 Notes are to be redeemed at any time, the Trustee (or Registrar if other than the Trustee) will select 2045 Notes
for redemption in compliance with the requirements of the principal national securities exchange, if any, on which the 2045 Notes are listed, or if the 2045 Notes are not listed on a national securities exchange, on a
pro rata
basis, by lot
or by such other method as the Trustee in its sole discretion shall deem to be fair and appropriate;
provided
, that no 2045 Note of $2,000 in principal amount or less shall be redeemed in part.
Section 3.02
Mandatory Redemption; Sinking Fund Obligations
. The Issuer shall have no obligation to redeem or purchase any 2045
Notes pursuant to any Mandatory Sinking Fund Payment.
ARTICLE IV
COVENANTS
Additional Covenants
. Article IV of the Original Indenture shall be amended by adding the following new Sections thereto as set
forth below for the benefit of the Holders of the 2045 Notes but no other series of Securities under the Original Indenture, whether now or hereafter issued and outstanding (except as may be provided in a future supplemental indenture to the
Original Indenture):
5
Section 4.06
Limitation on Liens
. If the Issuer, Parent or any of Parent’s
Significant Subsidiaries that is a Guarantor create or permit any lien of any kind upon any stock or indebtedness, whether owned on the Issue Date or thereafter acquired, of the Issuer or any of Parent’s Significant Subsidiaries that is a
Guarantor to secure any Debt (other than the 2045 Notes) of the Issuer, Parent, any of Parent’s Subsidiaries (other than the Issuer) or any other person, the Issuer will cause the outstanding 2045 Notes to be secured equally and ratably with
that Debt, unless the aggregate principal amount of all such secured Debt then outstanding would not exceed 10.0% of Parent’s Consolidated Net Assets. This
Section 4.06
does not (i) restrict any other property of Parent or its
Subsidiaries or (ii) prohibit the sale by Parent or any of its Subsidiaries of any stock or indebtedness of any Subsidiary, including any Significant Subsidiary.
Section 4.07
Offer to Repurchase Upon Change of Control Repurchase Event
.
(a) If a Change of Control Repurchase Event occurs, the Issuer will be required to make an offer to each Holder of the 2045 Notes to
repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s 2045 Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of the 2045 Notes repurchased plus
accrued interest, if any, to but excluding the date of repurchase. Within 30 days following a Change of Control Repurchase Event or, at the Issuer’s option, prior to a Change of Control, but after the public announcement of such Change of
Control, the Issuer shall mail to each Holder of the 2045 Notes, with a copy to the Trustee, a notice:
(i) describing the transaction or
transactions that constitute or may constitute the Change of Control Repurchase Event;
(ii) offering to repurchase the 2045 Notes;
(iii) setting forth the payment date for the repurchase of the 2045 Notes, which date will be no earlier than 30 days and no later than 60
days from the date such notice is mailed;
(iv) if mailed prior to the date of consummation of the Change of Control, stating that the
offer to purchase is conditioned on a Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice;
(v) stating that any 2045 Note not tendered will continue to accrue interest;
(vi) stating that, unless the Issuer defaults in the payment of the repurchase price, all 2045 Notes accepted for payment pursuant to the
repurchase offer will cease to accrue interest after the payment date specified in the notice; and
(vii) specifying the procedure for
tendering 2045 Notes.
(b) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities
laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the 2045 Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws
or regulations conflict with the provisions of this
Section 4.07
, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Indenture by virtue of such
conflict.
(c) On the repurchase date following a Change of Control Repurchase Event (the “
Change of Control Payment
Date
”), the Issuer will, to the extent lawful:
(i) accept for payment all 2045 Notes or portions of 2045 Notes properly
tendered pursuant to the Issuer’s offer;
6
(ii) deposit with the Paying Agent an amount equal to the aggregate purchase price in respect of
all 2045 Notes or portions of 2045 Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the 2045 Notes
properly accepted together with an Officer’s Certificate stating the aggregate principal amount of 2045 Notes being purchased by the Issuer.
(d) The Paying Agent will promptly mail to each Holder of 2045 Notes properly tendered the purchase price for the 2045 Notes, and the Trustee
will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder of 2045 Notes a new 2045 Note equal in principal amount to any unpurchased portion of any 2045 Notes surrendered; provided that each new 2045 Note will be
in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(e) The Issuer will not be required to make an
offer to repurchase the 2045 Notes upon a Change of Control Repurchase Event if (i) a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer set forth in the
Indenture and such third party purchases all 2045 Notes properly tendered and not withdrawn under its offer or (ii) a notice of redemption for all outstanding 2045 Notes has been given pursuant to Section 3.03 of the Original Indenture.
Section 4.08
Additional Guarantors
. Parent shall cause each Domestic Subsidiary that guarantees the Credit Agreement or any
other Debt of the Issuer, Parent or any of Parent’s Significant Subsidiaries that is a Guarantor to become a Guarantor and execute a supplemental indenture and deliver an Opinion of Counsel satisfactory to the Trustee within 30 days of becoming
a guarantor of such Debt; provided that, for avoidance of doubt, none of KCSM or any of its Subsidiaries shall be required to become a Guarantor.
Section 4.09
Reports
. Whether or not Parent is required to file reports with the Commission, Parent shall file with the
Commission all such reports and other information when and as Parent would be required to file with the Commission by Sections 13(a) or 15(d) under the Exchange Act if Parent were subject thereto, unless the Commission does not permit such filings,
in which case Parent shall provide such reports and other information to the Trustee (within the same time periods that would be applicable if Parent were required and permitted to file reports with the Commission) and instruct the Trustee to mail
such reports and other information to Holders at their addresses set forth on the Security Register. Parent shall supply the Trustee and each Holder of 2045 Notes or shall supply to the Trustee for forwarding to each such Holder, without cost to
such Holder, copies of such reports and other information. Notwithstanding the foregoing sentence, the Trustee and each Holder of 2045 Notes shall be deemed to have been supplied the foregoing reports and other information at the time the Trustee or
such Holder may electronically access such reports and other information by means of the Commission’s homepage on the internet or at Parent’s homepage on the internet.
Delivery of the reports and other information described in this
Section 4.09
to the Trustee is for informational purposes only and
the Trustee’s receipt of such reports or other information shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01
Effect of Covenant Defeasance
. Upon the Issuer’s exercise under Section 8.01 of the Original
Indenture of Covenant Defeasance, the Issuer and each of the Guarantors shall, subject to
7
the satisfaction of the conditions set forth in Section 8.04 thereof, be released from their obligations under
Sections 4.06
and
4.07
hereof with respect to the outstanding
2045 Notes on and after the date the conditions set forth in Section 8.04 thereof are satisfied, and the 2045 Notes will thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act
of Holders (and the consequences of any thereof) in connection with such covenants, but will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that 2045 Notes will not be deemed outstanding for
accounting purposes).
Section 5.02
Counterpart Originals
. The Original Indenture, as supplemented by this First
Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed. This First Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.
Section 5.03
Governing Law
. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE AND THE 2045 NOTES.
Section 5.04
TIA Controls
.
If any provision in this First Supplemental Indenture limits, qualifies or conflicts with another provision hereof that is required to be included herein by any provisions of the TIA, such required provision shall control.
Section 5.05
Severability
. In case any provision in this First Supplemental Indenture or the 2045 Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 5.06
Trustee’s Disclaimer
. The recitals contained herein shall be taken as the statements of the Issuer, and
the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture, except that the Trustee represents that it is duly authorized to execute and
deliver this First Supplemental Indenture and perform its obligations hereunder.
* * *
8
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly
executed as of the day and year first above written.
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THE KANSAS CITY SOUTHERN RAILWAY COMPANY, as the Issuer
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By:
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/s/ Michael W. Cline
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Name: Michael W. Cline
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Title: Vice President & Treasurer
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KANSAS CITY SOUTHERN, as Guarantor and Parent
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By
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/s/ Michael W. Upchurch
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Name: Michael W. Upchurch
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Title: Executive Vice President and Chief Financial Officer
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GATEWAY EASTERN RAILWAY COMPANY, as Guarantor
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By
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/s/ Michael W. Cline
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Name: Michael W. Cline
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Title: Vice President and Treasurer
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SOUTHERN DEVELOPMENT COMPANY, as Guarantor
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By
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/s/ Michael W. Upchurch
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Name: Michael W. Upchurch
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Title: Vice President, Chief Financial Officer and Treasurer
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THE KANSAS CITY NORTHERN RAILWAY COMPANY, as Guarantor
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By
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/s/ Michael W. Cline
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Name: Michael W. Cline
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Title: Vice President and Treasurer
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9
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TRANS-SERVE, INC., as Guarantor
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By
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/s/ Michael W. Cline
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Name: Michael W. Cline
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Title: Vice President and Treasurer
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KCS HOLDINGS I, INC., as Guarantor
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By
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/s/ Michael W. Cline
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Name: Michael W. Cline
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Title: Vice President and Treasurer
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KCS VENTURES I, INC., as Guarantor
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By
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/s/ Michael W. Cline
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Name: Michael W. Cline
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Title: Vice President and Treasurer
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SOUTHERN INDUSTRIAL SERVICES, INC., as Guarantor
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By
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/s/ Michael W. Upchurch
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Name: Michael W. Upchurch
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Title: Vice President, Chief Financial Officer and Treasurer
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VEALS, INC., as Guarantor
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By
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/s/ Michael W. Upchurch
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Name: Michael W. Upchurch
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Title: Vice President, Chief Financial Officer and Treasurer
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PABTEX, INC., as Guarantor
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By
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/s/ Michael W. Upchurch
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Name: Michael W. Upchurch
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Title: Vice President, Chief Financial Officer and Treasurer
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10
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ Crystal Maston
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Name: Crystal Maston
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Title: Vice President
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11
Exhibit A
EXHIBIT A
to
[Face of Note]
CUSIP No.
ISIN No.
4.950% Senior Notes due 2045
THE KANSAS CITY SOUTHERN RAILWAY COMPANY
promises to pay to
or registered assigns,
the principal sum of
dollars on August 15, 2045.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
A-2
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THE KANSAS CITY SOUTHERN RAILWAY COMPANY
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By:
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Name:
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Title:
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This is one of the Securities referred to
in the within-mentioned Indenture:
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By:
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Authorized Signatory
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Date:
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,
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A-3
[REVERSE SIDE OF NOTE]
4.950% Senior Notes due 2045
THIS SECURITY IS A
REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
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1.
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Principal and Interest
.
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The Issuer will pay the principal of this note on
August 15, 2045.
The Issuer promises to pay interest on the principal amount of this note on each Interest Payment Date at the rate
of 4.950% per annum.
Interest will be payable semi-annually (to the holders of record of the 2045 Notes at the close of business on
February 1 or August 1immediately preceding the Interest Payment Date) on each Interest Payment Date, commencing [February 15, 2016]*.
Interest on the 2045 Notes will accrue from the most recent date on which interest has been paid or, if no interest has been paid, from and
including July 27, 2015;
provided
that, if there is no existing default in the payment of interest and this note is authenticated between a regular record date referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such Interest Payment Date. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
The Issuer shall pay interest on overdue principal and premium, if any, and interest on overdue installments of interest, to the extent
lawful, at the rate per annum borne by the 2045 Notes to the extent lawful and in accordance with the terms of the Indenture.
The Issuer will pay principal as provided above and interest (except
defaulted interest) on the principal amount of the 2045 Notes as provided above on each Interest Payment Date to the Persons who are Holders (as reflected in the Security Register at the close of business on February 1 and August 1
immediately preceding the Interest Payment Date), in each case, even if the 2045 Note is cancelled on registration of transfer or registration of exchange after such record date;
provided
that, with respect to the payment of principal, the
Issuer will not make payment to the Holder unless this note is surrendered to a Paying Agent.
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*
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With respect to 2045 Notes issued on the Issue Date.
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A-4
The Issuer will pay principal, premium, if any, and, as provided above, interest in money of the
United States that at the time of payment is legal tender for payment of public and private debts. However, subject to the requirements of any Depositary which is the Holder of this note, the Issuer may pay principal, premium, if any, and interest
by its check payable in such money. The Issuer may mail an interest check to a Holder’s registered address (as reflected in the Security Register). If a payment date is a date other than a Business Day at a place of payment, payment may be made
at that place on the next succeeding day that is a Business Day and no interest shall accrue for the intervening period.
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3.
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Paying Agent and Registrar
.
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Initially, the Trustee will act as Authenticating Agent,
Paying Agent and Registrar. The Issuer may appoint or change any Authenticating Agent, Paying Agent or Registrar without notice. The Issuer, any Subsidiary or any Affiliate of any of them may act as Paying Agent, Registrar or co-Registrar.
The Issuer issued the 2045 Notes under an Indenture dated as of
July 27, 2015 (as supplemented by the First Supplemental Indenture dated as of July 27, 2015, the “
Indenture
”), among the Issuer, the guarantors party thereto and U.S. Bank National Association, as trustee (in such
capacity, the “
Trustee
”). Capitalized terms herein are used as defined in the Indenture unless otherwise indicated. The terms of the 2045 Notes include those stated in the Indenture and those made part of the Indenture by reference
to the TIA. The 2045 Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this
note and the terms of the Indenture, the terms of the Indenture shall control. The 2045 Notes are general unsecured obligations of the Issuer.
Prior to February 15, 2045, the 2045 Notes will be redeemable
in whole or in part at any time and from time to time, at the Issuer’s option, at a Redemption Price equal to the greater of (i) 100% of the principal amount of the 2045 Notes to be redeemed and (ii) the sum of the present values of
the remaining scheduled payments of principal and interest on the 2045 Notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at then-current Treasury Rate, plus 30 basis points, plus accrued interest to but excluding the Redemption Date.
On
or after February 15, 2045, the 2045 Notes will be redeemable in whole or in part at any time and from time to time, at the Issuer’s option, at a Redemption Price equal to 100% of the principal amount of the 2045 Notes to be redeemed plus
accrued interest to but excluding the Redemption Date.
If less than all of the 2045 Notes are to be redeemed at any time,
the Trustee shall select the 2045 Notes to be redeemed in compliance with the requirements of the principal national securities exchange, if any, on which the 2045 Notes are listed, or if the 2045 Notes are not listed on a national securities
exchange, on a
pro rata
basis, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair and appropriate;
provided
that no 2045 Note of $2,000 in principal amount or less shall be redeemed in part.
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7.
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Notice of Redemption
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Notice of any redemption pursuant to
Section 5
hereof
will be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder of 2045 Notes to be redeemed at his or her last address as it appears in the Security Register. Any 2045 Notes in original denominations larger than
$2,000 may be redeemed in part. On and after the Redemption Date, interest ceases to accrue and the principal amount shall remain constant (using the principal amount as of the Redemption Date) on 2045 Notes or portions of 2045 Notes called for
redemption, unless the Issuer defaults in the payment of the Redemption Price.
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8.
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Repurchase upon Change of Control Repurchase Event
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Upon the occurrence of any Change
of Control Repurchase Event, each Holder shall have the right to require the repurchase of its 2045 Notes by the Issuer in cash pursuant to the offer described in the Indenture at a purchase price equal to 101% of the principal amount thereof on the
date of repurchase plus accrued interest, if any, to, but excluding, the date of repurchase.
A notice of such Change of Control
Repurchase Event will be mailed within 30 days after any Change of Control Repurchase Event occurs or, at the Issuer’s option, prior to the Change of Control, but after public announcement of such Change of Control, to each Holder of the 2045
Notes with a copy to the Trustee. Any 2045 Notes in original denominations larger than $2,000 may be sold to the Issuer in part. On and after the Change of Control Payment Date, interest ceases to accrue on 2045 Notes or portions of 2045 Notes
surrendered for purchase by the Issuer, unless the Issuer defaults in the payment of the repurchase price.
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9.
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Denominations; Transfer; Exchange
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The 2045 Notes are in registered form without
coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. A Holder may register the transfer or exchange of 2045 Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not register the transfer or exchange of any 2045 Notes selected for redemption, except the
unredeemed portion of any 2045 Notes being redeemed in part. Also, it need not register the transfer or exchange of any 2045 Notes for a period of 15 days before a selection of 2045 Notes to be redeemed is made, or between a record date and the next
succeeding Interest Payment Date.
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10.
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Persons Deemed Owners
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A Holder shall be treated as the owner of a 2045 Note for all
purposes.
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, then, subject to applicable escheat law, the Trustee and the Paying Agent will pay the money back to the Issuer at its request. After that, Holders entitled to the money must look to the Issuer for payment, unless an
abandoned property law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease.
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12.
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Discharge Prior to Redemption or Maturity
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The Issuer’s and the Guarantors’
obligations pursuant to the Indenture will be discharged, except for obligations pursuant to certain sections thereof, subject to the terms of the Indenture, upon the payment of all the 2045 Notes or upon the irrevocable deposit with the Trustee of
U.S. dollars or Government Securities sufficient to pay when due principal of and interest on the 2045 Notes to maturity or redemption, as the case may be.
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13.
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Amendment; Supplement; Waiver
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Subject to certain exceptions, the Indenture, the 2045
Notes and the Note Guarantees may be amended or supplemented with the consent of the Holders of a majority in principal amount of the 2045 Notes then outstanding, and any existing default or compliance with any provision may be waived with the
consent of the Holders of a majority in principal amount of the 2045 Notes then outstanding. Without notice to or the consent of any Holder, the parties thereto may amend or supplement the Indenture, the 2045 Notes and the Note Guarantees to, among
other things, cure any ambiguity, omission, mistake, defect or inconsistency and make any change that does not adversely affect the legal rights of any Holder.
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14.
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Restrictive Covenants
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The Indenture imposes certain limitations on the ability of the
Issuer and the Guarantors, among other things, to create or permit any lien or merge, consolidate or transfer substantially all of their assets. Within 90 days after the end of each fiscal year, the Issuer must report to the Trustee on compliance
with such limitations.
When a successor person or other entity assumes all the obligations
of its predecessor under the 2045 Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.
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16.
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Defaults and Remedies
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The following events constitute “Events of Default”
under the Indenture: (a) default in the payment of principal of (or premium, if any, on) any 2045 Note when the same becomes due at maturity, upon acceleration, redemption or otherwise; (b) default in the payment of interest on any
2045 Note when due and such default continues for a period of 30 days; (c) the Issuer or a Guarantor defaults in the performance of any covenant of the Issuer or a Guarantor in the Indenture or under this note (other than a default specified in
clause (a) or (b) above), and such default continues for a period of 90 days after written notice by the Trustee or the Holders of 25% or more in aggregate principal amount of the 2045 Notes; (d) a court having jurisdiction in the
premises enters a decree or order for (i) relief in respect of the Issuer or a Guarantor in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for the Issuer or a Guarantor or for all or substantially all of the property and assets of the Issuer or a Guarantor or (iii) the winding-up or liquidation of the
affairs of the Issuer or a Guarantor and, in each case, such decree or order shall remain unstayed and in effect for a period of 30 consecutive days; (e) the Issuer or a Guarantor (i) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law; (ii) consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for the
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Issuer or a Guarantor or for all or substantially all of the property and assets of the Issuer or a Guarantor or (iii) effects any general assignment for the benefit of creditors; or
(f) any Note Guarantee ceases to be in full force and effect (except as contemplated by the terms of the Indenture) or any Guarantor or Person acting on behalf of such Guarantor denies or disaffirms such Guarantor’s obligations under the
Indenture or any Note Guarantee and such default continues for a period of 10 days after written notice by the Trustee or the Holders of 25% or more in aggregate principal amount of the 2045 Notes.
If an Event of Default occurs and is continuing under the Indenture, the Trustee or the Holders of at least 25% in aggregate principal amount
of the 2045 Notes then outstanding, by written notice to the Issuer (and to the Trustee if such notice is given by the Holders), may, and the Trustee at the request of such Holders shall, declare the principal of, premium, if any, and accrued
interest on the 2045 Notes to be immediately due and payable.
Holders may not enforce the Indenture or the 2045 Notes except as provided
in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the 2045 Notes. Subject to certain limitations, Holders of a majority in principal amount of the 2045 Notes then outstanding may direct the
Trustee in its exercise of any trust or power.
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17.
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Trustee Dealings with Issuer
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The Trustee under the Indenture, in its individual or any
other capacity, may make loans to, accept deposits from and perform services for the Issuer or its Affiliates and may otherwise deal with the Issuer or its Affiliates as if it were not the Trustee.
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18.
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No Personal Liability of Incorporators, Stockholders, Officers, Directors, or Employees
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No recourse for the payment of the principal of, premium, if any, or interest on any of the 2045 Notes issued under the Indenture or for any
claim based on the Indenture or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Issuer or any Guarantor in the Indenture, or in any of the 2045 Notes or the Note Guarantees or because of the
creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer, director, employee or controlling person of the Issuer, any Guarantor or of any successor Person thereof. Each Holder, by accepting the
2045 Notes, waives and releases all such liability.
This note shall not be valid until the Trustee or Authenticating Agent
signs the certificate of authentication on the other side of this note.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to Kansas
City Southern, 427 West 12th Street, Kansas City, MO 64105, Attention: Treasurer.
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ASSIGNMENT FORM
To assign this note, fill in the form below:
(I) or (we)
assign and transfer this note to:
(Insert assignee’s soc. sec.
or tax I.D. no.)
(Insert assignee’s legal name)
(Print or type assignee’s name,
address and zip code)
and irrevocably appoint
to transfer this note on the books of the Issuer. The agent may substitute another to act for him.
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Your Signature:
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(Sign exactly as your name appears on the face of this note)
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*
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
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A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this note purchased by the Issuer pursuant to
Section 4.07
of the First Supplemental Indenture, check
the box below:
¨
Section 4.07
If you want to elect to have only part of the 2045 Note purchased by the Issuer pursuant to
Section 4.07
of the First Supplemental
Indenture, state the amount you elect to have purchased:
$
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this note)
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*
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
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A-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE REGISTERED GLOBAL SECURITY
The following exchanges of a part of this Registered Global Security for an interest in another Registered Global Security or for an
Unregistered Security, or exchanges of a part of another Registered Global Security or Unregistered Security for an interest in this Registered Global Security, have been made:
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Date of Exchange
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Amount of
decrease in
Principal Amount
of this Registered
Global Security
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Amount of
increase in
Principal Amount
of this Registered
Global Security
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Principal Amount
of this Registered
Global Security
following such
decrease (or
increase)
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Signature of
authorized officer
of Trustee or
Custodian
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A-11
