Exhibit 4.1
EXECUTION VERSION
The Kansas City Southern Railway Company,
Issuer
and
U.S. Bank National Association,
Trustee
___________________
Indenture
Dated as of June 12, 2002
___________________
7 1/2% Senior Notes due 2009
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions .................................................. 1
SECTION 1.02 Other Definitions ............................................ 21
SECTION 1.03 Incorporation by Reference of Trust Indenture Act ............ 21
SECTION 1.04 Rules of Construction ........................................ 22
ARTICLE 2
THE SECURITIES
SECTION 2.01 Amount of Securities; Issuable in Series ..................... 22
SECTION 2.02 Form and Dating .............................................. 23
SECTION 2.03 Execution and Authentication ................................. 24
SECTION 2.04 Registrar and Paying Agent ................................... 24
SECTION 2.05 Paying Agent to Hold Money in Trust .......................... 25
SECTION 2.06 Holder Lists ................................................. 25
SECTION 2.07 Transfer and Exchange ........................................ 25
SECTION 2.08 Replacement Securities ....................................... 26
SECTION 2.09 Outstanding Securities ....................................... 26
SECTION 2.10 Temporary Securities ......................................... 27
SECTION 2.11 Cancellation ................................................. 27
SECTION 2.12 Defaulted Interest ........................................... 27
SECTION 2.13 CUSIP Numbers ................................................ 27
ARTICLE 3
REDEMPTION
SECTION 3.01 Notices to Trustee ........................................... 28
SECTION 3.02 Selection of Securities to Be Redeemed ....................... 28
SECTION 3.03 Notice of Redemption ......................................... 28
SECTION 3.04 Effect of Notice of Redemption ............................... 29
SECTION 3.05 Deposit of Redemption Price .................................. 29
SECTION 3.06 Securities Redeemed in Part .................................. 29
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Securities ........................................ 29
SECTION 4.02 SEC Reports .................................................. 30
SECTION 4.03 Limitation on Indebtedness ................................... 30
SECTION 4.04 Limitation on Restricted Payments ............................ 32
SECTION 4.05 Limitation on Restrictions on Distributions from Restricted
Subsidiaries ................................................. 35
SECTION 4.06 Limitation on Sales of Assets and Capital Stock .............. 36
SECTION 4.07 Limitation on Transactions with Affiliates ................... 40
SECTION 4.08 Change of Control ............................................ 41
SECTION 4.09 Compliance Certificate ....................................... 42
SECTION 4.10 Further Instruments and Acts ................................. 42
SECTION 4.11 Future Note Guarantors ....................................... 42
SECTION 4.12 Limitation on Lines of Business .............................. 43
SECTION 4.13 Limitation on Liens .......................................... 43
SECTION 4.14 Limitation on Sale/Leaseback Transactions .................... 43
SECTION 4.15 Covenant Suspension .......................................... 44
ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.01 When Company May Merge or Transfer Assets .................... 44
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default ............................................ 46
SECTION 6.02 Acceleration ................................................. 47
SECTION 6.03 Other Remedies ............................................... 48
SECTION 6.04 Waiver of Past Defaults ...................................... 48
SECTION 6.05 Control by Majority .......................................... 48
SECTION 6.06 Limitation on Suits .......................................... 48
SECTION 6.07 Rights of Holders to Receive Payment ......................... 49
SECTION 6.08 Collection Suit by Trustee ................................... 49
SECTION 6.09 Trustee May File Proofs of Claim ............................. 49
SECTION 6.10 Priorities ................................................... 49
SECTION 6.11 Undertaking for Costs ........................................ 50
SECTION 6.12 Waiver of Stay or Extension Laws ............................. 50
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee ............................................ 50
SECTION 7.02 Rights of Trustee ............................................ 51
SECTION 7.03 Individual Rights of Trustee ................................. 52
SECTION 7.04 Trustee's Disclaimer ......................................... 52
SECTION 7.05 Notice of Defaults ........................................... 53
SECTION 7.06 Reports by Trustee to Holders ................................ 53
SECTION 7.07 Compensation and Indemnity ................................... 53
SECTION 7.08 Replacement of Trustee ....................................... 54
SECTION 7.09 Successor Trustee by Merger .................................. 55
SECTION 7.10 Eligibility; Disqualification ................................ 55
SECTION 7.11 Preferential Collection of Claims Against Company ............ 55
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01 Discharge of Liability on Securities; Defeasance ............. 55
SECTION 8.02 Conditions to Defeasance ..................................... 57
SECTION 8.03 Application of Trust Money ................................... 58
SECTION 8.04 Repayment to Company ......................................... 58
SECTION 8.05 Indemnity for Government Obligations ......................... 58
SECTION 8.06 Reinstatement ................................................ 58
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders ................................... 59
SECTION 9.02 With Consent of Holders ...................................... 59
SECTION 9.03 Compliance with Trust Indenture Act .......................... 60
SECTION 9.04 Revocation and Effect of Consents and Waivers ................ 60
SECTION 9.05 Notation on or Exchange of Securities ........................ 61
SECTION 9.06 Trustee to Sign Amendments ................................... 61
SECTION 9.07 Payment for Consent .......................................... 61
ARTICLE 10
NOTE GUARANTEES
SECTION 10.01 Note Guarantees ............................................. 61
SECTION 10.02 Limitation on Liability ..................................... 63
SECTION 10.03 Successors and Assigns ...................................... 64
SECTION 10.04 No Waiver ................................................... 64
SECTION 10.05 Modification ................................................ 64
SECTION 10.06 Execution of Supplemental Indenture for Future Note
Guarantors .................................................. 64
SECTION 10.07 Non-Impairment .............................................. 65
ARTICLE II
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls ................................ 65
SECTION 11.02 Notices ..................................................... 65
SECTION 11.03 Communication by Holders with Other Holders ................. 66
SECTION 11.04 Certificate and Opinion as to Conditions Precedent .......... 66
SECTION 11.05 Statements Required in Certificate or Opinion ............... 66
SECTION 11.06 When Securities Disregarded ................................. 66
SECTION 11.07 Rules by Trustee, Paying Agent and Registrar ................ 67
SECTION 11.08 Legal Holidays .............................................. 67
SECTION 11.09 GOVERNING LAW ............................................... 67
SECTION 11.10 No Recourse Against Others .................................. 67
SECTION 11.11 Successors .................................................. 67
SECTION 11.12 Multiple Originals .......................................... 67
SECTION 11.13 Table of Contents; Headings ................................. 67
Appendix A - Provisions Relating to Original Securities, Additional Securities,
Private Exchange Securities and Exchange Securities
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Supplemental Indenture
Exhibit D - Form of Transferee Letter of Representation
Exhibit E - Form of Note Guarantee
Exhibit F - Exhibit Evidencing Indebtedness of the Company Outstanding on the
Date of this Indenture
INDENTURE dated as of June 12, 2002, among The Kansas City Southern
Railway Company, a Missouri corporation (the "Company"), Kansas City Southern
(the "Parent"), Gateway Eastern Railway Company, Mid-South Microwave, Inc.,
PABTEX GP, LLC, PABTEX L.P., Rice-Carden Corporation, SIS Bulk Holding, Inc.,
Southern Development Company, Southern Industrial Services, Inc., and
Trans-Serve, Inc. (collectively, including the Parent, the "Note Guarantors")
and U.S. Bank National Association, a national banking corporation, as trustee
(the "Trustee").
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the Holders of (a) the Company's 7 1/2% Senior
Notes due 2009 issued on the date hereof (the "Original Securities"), (b) any
Additional Securities (as defined herein) that may be issued on any Issue Date
(all such Securities in clauses (a) and (b) being referred to collectively as
the "Initial Securities"), (c) if and when issued as provided in the
Registration Agreement (as defined in Appendix A hereto (the "Appendix")), the
Company's 7 1/2% Senior Notes due 2009 issued in the Registered Exchange Offer
in exchange for any Initial Securities (the "Exchange Securities") and (d) if
and when issued as provided in the Registration Agreement, the Private Exchange
Securities (together with the Initial Securities and any Exchange Securities
issued hereunder, the "Securities") issued in the Private Exchange. Except as
otherwise provided herein, the Securities will be unlimited in aggregate
principal amount outstanding, of which $200,000,000 in aggregate principal
amount will be initially issued on the date hereof. Subject to the conditions
and in compliance with the covenants set forth herein, the Company may issue an
unlimited aggregate principal amount of Additional Securities.
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01 Definitions.
"Additional Assets" means (a) any property or assets (other than
Indebtedness and Capital Stock) to be used by the Parent or a Restricted
Subsidiary in a Permitted Business; (b) the Capital Stock of a Person that
becomes a Restricted Subsidiary as a result of the acquisition of such Capital
Stock by the Parent or another Restricted Subsidiary; or (c) Capital Stock
constituting a minority interest in any Person that at such time is a Restricted
Subsidiary; provided, however, that any such Restricted Subsidiary described in
clauses (b) or (c) above is primarily engaged in a Permitted Business.
"Additional Securities" means an unlimited aggregate principal amount of 7
1/2% Senior Notes due 2009 issued under the terms of this Indenture subsequent
to the Closing Date.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Section 4.06 and Section 4.07 only, "Affiliate" shall also mean any
beneficial owner of shares representing 10% or more of the total voting power of
the Voting Stock (on a fully diluted basis) of the Parent or the Company or of
rights or warrants to purchase such Voting Stock (whether or not currently
exercisable) and any Person who would be an Affiliate of any such beneficial
owner pursuant to the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other disposition
(or series of related sales, leases, transfers or dispositions) by the Parent or
any Restricted Subsidiary, including any disposition by means of a merger,
consolidation, or similar transaction (each referred to for the purposes of this
definition as a "disposition"), of:
(a) any shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares or shares required by applicable law to be
held by a Person other than the Parent or a Restricted Subsidiary),
(b) all or substantially all the assets of any division or line of
business of the Parent or any Restricted Subsidiary, or
(c) any other assets of the Parent or any Restricted Subsidiary
outside of the ordinary course of business of the Parent or such Restricted
Subsidiary other than, in the case of (a), (b) or (c) above,
(i) disposition by a Restricted Subsidiary to the Parent or by
the Parent or a Restricted Subsidiary to a Wholly Owned Subsidiary,
(ii) for purposes of Section 4.06 only, a disposition that
constitutes a Restricted Payment permitted by Section 4.04,
(iii) a disposition of assets with a Fair Market Value of less
than $1,000,000, and
(iv) any exchange of like property pursuant to Section 1031 of
the Code for use in a Permitted Business,
"Attributable Debt" in respect of a Sale/Leaseback Transaction means, as at
the time of determination, the present value (discounted at the interest rate
borne by the Securities, compounded annually) of the total obligations of the
lessee for rental payments during the remaining term of the lease included in
such Sale/Leaseback Transaction (including any period for which such lease has
been extended).
"Average Life" means, as of the date of determination, with respect to any
Indebtedness or Preferred Stock, the quotient obtained by dividing (a) the sum
of the products of the numbers of years from the date of determination to the
dates of each successive scheduled principal payment of such Indebtedness or
scheduled redemption or similar payment with respect to such Preferred Stock
multiplied by the amount of such payment by (b) the sum of all such payments.
"Bank Indebtedness" means any and all amounts payable under or in respect
of the Credit Agreement (after giving effect to the issuance of the Original
Securities and the repayment of Bank Indebtedness with the proceeds therefrom;
after such repayment $150,000,000 of Tranche B term loans will remain
outstanding under the Credit Agreement), and any Refinancing Indebtedness with
respect thereto, including principal, premium (if any), interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not a claim for post-filing
interest is allowed in such proceedings), fees, charges, expenses, reimbursement
obligations, guarantees and all other amounts payable thereunder or in respect
thereof. It is understood and agreed that Refinancing Indebtedness in respect of
the Credit Agreement may be Incurred from time to time after termination of the
Credit Agreement.
"Board of Directors" means the Board of Directors of the Parent or any
committee thereof duly authorized to act on behalf of the Board of Directors of
the Parent.
"Business Day" means each day that is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is required to be
classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be prepaid by the lessee without payment of a
penalty.
"Change of Control" means the occurrence of any of the following events:
(a) at any time, less than 75% of the members of the Board of
Directors of the Parent shall be (1) individuals who are members of such
board on June 5, 2002 or (2) individuals whose election, or nomination for
election by the Parent's stockholders, was approved by a vote of at least
75% of the members of the Board of Directors of the Parent then still in
office who are members of such board on June 5, 2002 (or whose election or
nomination has been approved as provided in this clause (a));
(b) at any time, any Person, or any two or more Persons acting as a
partnership, limited partnership, syndicate or other group for the purpose
of acquiring, holding or disposing of Voting Stock of the Parent, shall
become, according to public announcement or filing, the "beneficial owner"
(as defined in Rule 13d-3 issued under the Exchange Act), directly or
indirectly, of securities of the Parent representing 30% or more
(calculated in accordance with such Rule 13d-3) of the combined voting
power of the Parent's then outstanding Voting Stock;
(c) any Person other than the Parent shall acquire ownership, directly
or indirectly, beneficially or of record of more than 30% of the Voting
Stock of the Company; or
(d) the merger or consolidation of the Parent or the Company with or
into another Person or the merger of another Person with or into the Parent
or the Company, or the sale of all or substantially all the assets of the
Parent or the Company to another Person, and, in the case of any such
merger or consolidation, the securities of the Parent or the Company that
are outstanding immediately prior to such transaction and that represent
100% of the aggregate voting power of the Voting Stock of the Parent or the
Company are changed into or exchanged for cash, securities or property,
unless pursuant to such transaction such securities are changed into or
exchanged for, in addition to any other consideration, securities of the
surviving Person or transferee that represent immediately after such
transaction at least a majority of the aggregate voting power of the Voting
Stock of the surviving Person or transferee.
"Closing Date" means the date of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture until a successor
replaces it and, thereafter, means the successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on the
indenture securities.
"Consolidated Coverage Ratio" as of any date of determination means the
ratio of (a) the aggregate amount of EBITDA for the period of the most recent
four consecutive fiscal quarters ending at least 45 days prior to the date of
such determination to (b) Consolidated Interest Expense for such four fiscal
quarters; provided, however, that:
(i) if the Parent or any Restricted Subsidiary has Incurred any
Indebtedness since the beginning of such period (other than Indebtedness
under a revolving credit facility) that remains outstanding on such date of
determination or if the transaction giving rise to the need to calculate
the Consolidated Coverage Ratio is an Incurrence of Indebtedness, EBITDA
and Consolidated Interest Expense for such period shall be calculated after
giving effect on a pro forma basis to such Indebtedness as if such
Indebtedness had been Incurred on the first day of such period and the
discharge of any other Indebtedness repaid, repurchased, defeased or
otherwise discharged with the proceeds of such new Indebtedness as if such
discharge had occurred on the first day of such period;
(ii) if the Parent or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness (other than
Indebtedness under a revolving credit facility) since the beginning of such
period or if any Indebtedness is to be repaid, repurchased, defeased or
otherwise discharged on the date of the transaction giving rise to the need
to calculate the Consolidated Coverage Ratio, EBITDA and Consolidated
Interest Expense for such period shall be calculated on a pro forma basis
as if such discharge had occurred on the first day of such period and as if
the Parent or such Restricted Subsidiary had not earned the interest income
actually earned during such period in respect of cash or Temporary Cash
Investments used to repay, repurchase, defease or otherwise discharge such
Indebtedness;
(iii) if since the beginning of such period the Parent or any
Restricted Subsidiary shall have made any Asset Disposition, the EBITDA for
such period shall be reduced by an amount equal to the EBITDA (if positive)
directly attributable to the assets that are the subject of such Asset
Disposition for such period or increased by an amount equal to the EBITDA
(if negative) directly attributable thereto for such period and
Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any
Indebtedness of the Parent or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the Parent
and its continuing Restricted Subsidiaries in connection with such Asset
Disposition for such period (or, if the Capital Stock of any Restricted
Subsidiary is sold, the Consolidated Interest Expense for such period
directly attributable to the Indebtedness of such Restricted Subsidiary to
the extent the Parent and its continuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such sale);
(iv) if since the beginning of such period the Parent or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any Person that becomes a
Restricted Subsidiary) or an acquisition of assets, including any
acquisition of assets occurring in connection with a transaction causing a
calculation to be made hereunder, which constitutes all or substantially
all of an operating unit of a business, EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving pro forma effect
thereto (including the Incurrence of any Indebtedness) as if such
Investment or acquisition occurred on the first day of such period; and
(v) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Parent or any Restricted Subsidiary since the beginning of such period)
shall have made any Asset Disposition or any Investment or acquisition of
assets that would have required an adjustment pursuant to clause (iii) or
(iv) above if made by the Parent or a Restricted Subsidiary during such
period, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto as if such Asset
Disposition, Investment or acquisition of assets occurred on the first day
of such period. For purposes of this definition, whenever pro forma effect
is to be given to an acquisition of assets or other Investment, the amount
of income or earnings relating thereto and the amount of Consolidated
Interest Expense associated with any Indebtedness Incurred in connection
therewith, the pro forma calculations shall be determined in good faith by
a responsible financial or accounting Officer of the Parent and shall
comply with the requirements of Rule 11-02 of Regulation S-X promulgated by
the SEC. If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been
the applicable rate for the entire period (taking into account any Interest
Rate Agreement applicable to such Indebtedness if such Interest Rate
Agreement has a remaining term as at the date of determination in excess of
12 months). For purposes of making the computation referred to above,
interest on any Indebtedness under a revolving credit facility computed on
a pro forma basis shall be computed based upon the average daily balance of
such Indebtedness during the applicable period.
"Consolidated Current Liabilities" as of the date of determination means
the aggregate amount of liabilities of the Parent and its Consolidated
Restricted Subsidiaries that may properly be classified as current liabilities
(including taxes accrued as estimated), on a Consolidated basis, after
eliminating (a) all intercompany items between the Parent and any Restricted
Subsidiary and (b) all current maturities of long-term Indebtedness, all as
determined in accordance with GAAP consistently applied.
"Consolidated Interest Expense" means, for any period, the total interest
expense of the Parent and its Consolidated Restricted Subsidiaries, plus, to the
extent Incurred by the Parent and its Consolidated Restricted Subsidiaries in
such period but not included in such interest expense, without duplication (a)
interest expense attributable to Capitalized Lease Obligations and the interest
expense attributable to leases constituting part of a Sale/Leaseback
Transaction, (b) amortization of debt discount and debt issuance costs, (c)
capitalized interest, (d) noncash interest expense, (e) commissions, discounts
and other fees and charges attributable to letters of credit and bankers'
acceptance financing, (f) interest accruing on any Indebtedness of any other
Person to the extent such Indebtedness is Guaranteed by the Parent or any
Restricted Subsidiary, (g) net costs associated with Hedging Obligations
(including amortization of fees), (h) dividends in respect of all Disqualified
Stock of the Parent and all Preferred Stock of any of the Subsidiaries of the
Parent (other than the Company), to the extent held by Persons other than the
Parent or a Wholly Owned Subsidiary, (i) interest Incurred in connection with
investments in discontinued operations, and (j) the cash contributions to any
employee stock ownership plan or similar trust to the extent such contributions
are used by such plan or trust to pay interest or fees to any Person (other than
the Parent) in connection with Indebtedness Incurred by such plan or trust.
"Consolidated Net Income" means, for any period, the net income of the
Parent and its Consolidated Subsidiaries for such period; provided, however,
that there shall not be included in such Consolidated Net Income:
(a) subject to the limitations contained in clause (b) below, any net
income of any Person (other than the Parent) if such Person is not a
Restricted Subsidiary, except that (i) subject to the limitations contained
in clause (e) below, the Parent's equity in the net income of any such
Person for such period shall be included in such Consolidated Net Income up
to the aggregate amount of cash actually distributed by such Person during
such period to the Parent or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution made
to a Restricted Subsidiary, to the limitations contained in clause (d)
below) and (ii) the Parent's equity in a net loss of any such Person for
such period shall be included in determining such Consolidated Net Income;
(b) all net income and net loss attributable to each Foreign Equity
Investment shall be excluded from Consolidated Net Income, and in lieu
thereof, the amount determined as follows shall be included in Consolidated
Net Income: (i) the Parent's equity in the pretax net income and pretax net
loss attributable to each Foreign Equity Investment shall be determined in
the aggregate (so that pretax net losses offset corresponding amounts of
pretax net income); (ii) if the amount determined pursuant to subclause (i)
is positive, it shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Persons during such
period to the Parent or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution made
to a Restricted Subsidiary, to the limitations contained in clause (d)
below); and (iii) if the amount determined pursuant to subclause (i) is
negative, such loss shall be included in determining such Consolidated Net
Income;
(c) any net income (or loss) of any Person acquired by the Parent or a
Subsidiary of the Parent in a pooling of interests transaction for any
period prior to the date of such acquisition;
(d) any net income (or loss) of any Restricted Subsidiary other than
the Issuer if such Restricted Subsidiary is subject to restrictions,
directly or indirectly, on the payment of dividends or the making of
distributions by such Restricted Subsidiary, directly or indirectly, except
that (i) subject to the limitations contained in clause (e) below, the
Parent's equity in the net income of any such Restricted Subsidiary for
such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Restricted Subsidiary
during such period to the Parent or another Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or other
distribution made to another Restricted Subsidiary, to the limitation
contained in this clause) and (ii) the Parent's equity in a net loss of any
such Restricted Subsidiary for such period shall be included in determining
such Consolidated Net Income;
(e) any gain (but not loss) realized upon the sale or other
disposition of any asset of the Parent or its Consolidated Subsidiaries
(including pursuant to any Sale/Leaseback Transaction) that is not sold or
otherwise disposed of in the ordinary course of business and any gain (but
not loss) realized upon the sale or other disposition of any Capital Stock
of any Person;
(f) any extraordinary gain or loss; and
(g) the cumulative effect of a change in accounting principles.
Notwithstanding the foregoing, for the purposes of Section 4.04 only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers of assets from Unrestricted Subsidiaries to
the Parent or a Restricted Subsidiary to the extent such dividends, repayments
or transfers increase the amount of Restricted Payments permitted under such
Section pursuant to clause (a)(iv)(3)(D) thereof.
"Consolidated Net Tangible Assets" as of any date of determination means
the total amount of assets (less accumulated depreciation and amortization,
allowances for doubtful receivables, other applicable reserves and other
properly deductible items) that would appear on a consolidated balance sheet of
the Parent and its Consolidated Restricted Subsidiaries, determined on a
Consolidated basis in accordance with GAAP, and after giving effect to purchase
accounting and after deducting therefrom Consolidated Current Liabilities and,
to the extent otherwise included, the amounts of: (a) minority interests in
consolidated Subsidiaries held by Persons other than the Parent or a Restricted
Subsidiary; (b) excess of cost over fair value of assets of businesses acquired,
as determined in good faith by the Board of Directors; (c) any revaluation or
other write-up in book value of assets subsequent to the Closing Date as a
result of a change in the method of valuation in accordance with GAAP
consistently applied; (d) unamortized debt discount and expenses and other
unamortized deferred charges, goodwill, patents, trademarks, service marks,
trade names, copyrights, licenses, organization or developmental expenses and
other intangible items; (e) treasury stock; (f) cash set apart and held in a
sinking or other analogous fund established for the purpose of redemption or
other retirement of Capital Stock to the extent such obligation is not reflected
in Consolidated Current Liabilities; and (g) Investments in and assets of
Unrestricted Subsidiaries.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Parent and its Restricted Subsidiaries, determined on a
Consolidated basis, as of the end of the most recent fiscal quarter of the
Parent ending at least 45 days prior to the taking of any action for the purpose
of which the determination is being made, as (a) the par or stated value of all
outstanding Capital Stock of the Parent plus (b) paid-in capital or capital
surplus relating to such Capital Stock plus (c) any retained earnings or earned
surplus less (i) any accumulated deficit and (ii) any amounts attributable to
Disqualified Stock.
"Consolidation" means the consolidation of the amounts of each of the
Restricted Subsidiaries with those of the Parent in accordance with GAAP
consistently applied; provided, however, that "Consolidation" shall not include
consolidation of the accounts of any Unrestricted Subsidiary, but the interest
of the Parent or any Restricted Subsidiary in an Unrestricted Subsidiary will be
accounted for as an investment. The term "Consolidated" has a correlative
meaning.
"Credit Agreement" means the Credit Agreement dated as of January 11, 2000,
among the Parent, the Company, the lenders party thereto, JPMorgan Chase Bank
(formerly, The Chase Manhattan Bank), as Administrative Agent, Collateral Agent,
Issuing Bank and Swingline Lender, The Bank of Nova Scotia, as Syndication
Agent, and Fleet National Bank, as Documentation Agent, as amended, restated,
supplemented, waived, replaced (whether or not upon termination, and whether
with the original lenders or otherwise), refinanced, restructured or otherwise
modified from time to time (except to the extent that any such amendment,
restatement, supplement, waiver, replacement, refinancing, restructuring or
other modification thereto would be prohibited by the terms of this Indenture,
unless otherwise agreed to by the Holders of at least a majority in aggregate
principal amount of Securities at the time outstanding).
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Designated Sale/Leaseback Transaction" means any Sale/Leaseback
Transaction that at the time of determination (a) has been designated a
Designated Sale/Leaseback Transaction by the Board of Directors by its promptly
filing with the Trustee a copy of the resolution of the Board of Directors
giving effect to such designation and (b) has not been removed as a Designated
Sale/Leaseback Transaction by the Board of Directors by its prompt filing with
the Trustee a copy of the resolution of the Board of Directors giving effect to
such removal.
"Disqualified Stock" means, with respect to any Person, any Capital Stock
that by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable or exercisable) or upon the happening of any
event (a) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (b) is convertible or exchangeable for Indebtedness or
Disqualified Stock (excluding Capital Stock convertible or exchangeable solely
at the option of the Parent or a Restricted Subsidiary; provided, however, that
any such conversion or exchange shall be deemed an Incurrence of Indebtedness or
Disqualified Stock, as applicable) or (c) is redeemable at the option of the
holder thereof, in whole or in part, in the case of each of clauses (a), (b) and
(c) on or prior to the first anniversary of the Stated Maturity of the
Securities; provided, however, that any Capital Stock that would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require such Person to repurchase or redeem such Capital Stock upon the
occurrence of an "asset sale" or "change of control" occurring prior to the
first anniversary of the Stated Maturity of the Securities shall not constitute
Disqualified Stock if the "asset sale" or "change of control" provisions
applicable to such Capital Stock are not more favorable to the holders of such
Capital Stock than the provisions of Sections 4.06 and 4.08.
"EBITDA" for any period means the Consolidated Net Income for such period,
plus, without duplication, the following to the extent deducted in calculating
such Consolidated Net Income: (a) income tax expense of the Parent and its
Consolidated Restricted Subsidiaries, (b) Consolidated Interest Expense, (c)
depreciation expense of the Parent and its Consolidated Restricted Subsidiaries
and (d) amortization expense of the Parent and its Consolidated Restricted
Subsidiaries (excluding amortization expense attributable to a prepaid cash item
that was paid in a prior period). Notwithstanding the foregoing, the provision
for taxes based on the income or profits of, and the depreciation and
amortization and noncash charges of, a Restricted Subsidiary of the Parent shall
be added to Consolidated Net Income to compute EBITDA only to the extent (and in
the same proportion) that the net income of such Restricted Subsidiary was
included in calculating Consolidated Net Income and only if a corresponding
amount would be permitted at the date of determination to be dividended to the
Parent by such Restricted Subsidiary without prior approval (that has not been
obtained), pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to such Restricted Subsidiary or its stockholders.
"Equity Offering" means an underwritten primary public offering of common
stock of the Parent or the Company pursuant to an effective registration
statement under the Securities Act or a bona fide private placement of the
common stock of the Parent or the Company on arm's-length terms to unaffiliated
third parties.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Contributions" means net cash proceeds received by the Parent or
the Company from the issue or sale of its Capital Stock (other than Disqualified
Stock) subsequent to the Closing Date (other than an issuance or sale to (x) a
Subsidiary of the Parent or (y) an employee stock ownership plan or other trust
established by the Parent or any of its Subsidiaries), in each case designated
as Excluded Contributions pursuant to an Officers' Certificate executed on the
date such Capital Stock is issued or sold, which are excluded from the
calculation set forth in Section 4.04(a)(iv)(3).
"Fair Market Value" means, with respect to any asset or property, the price
that could be negotiated in an arm's-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction.
"Foreign Equity Investment" means any investment in Mexrail, Inc., The
Texas Mexican Railway Company, TFM, Grupo TFM or Panama Canal Railway Company or
their successors for which the equity method of accounting is used.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the Closing Date, including those set forth in (a)
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (b) statements and
pronouncements of the Financial Accounting Standards Board, (c) such other
statements by such other entities as approved by a significant segment of the
accounting profession and (d) the rules and regulations of the SEC governing the
inclusion of financial statements (including pro forma financial statements) in
periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC. All ratios and
computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP.
"Grupo TFM" means Grupo Transportacion Ferroviaria Mexicana, S.A. de C.V.
"Grupo TFM Disposition" means any sale, transfer or other disposition for
cash (or series of related sales, transfers or dispositions) by Caymex
Transportation, Inc. or Nafta Rail S.A. de C.V. of any shares of Capital Stock
of Nafta Rail S.A. de C.V., Grupo TFM, TFM or any combination thereof, in each
case on arm's-length terms to unaffiliated third parties.
"Grupo TFM Investment" means (i) any purchase or acquisition by Nafta Rail
S.A. de C.V., the Parent or any directly or indirectly Wholly Owned Subsidiary
of the Parent, of any shares of Capital Stock of Grupo TFM or TFM from the
government of Mexico or an instrumentality thereof or (ii) any capital
contribution made to Grupo TFM, TFM or both to fund the purchase by it or them,
if applicable, of shares of Capital Stock of Grupo TFM, TFM or both from the
government of Mexico or an instrumentality thereof, in each case made with the
proceeds of a Grupo TFM Disposition.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness or other obligation of any
other Person and any obligation, direct or indirect, contingent or otherwise, of
such Person (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation of such other Person
(whether arising by virtue of partnership arrangements, or by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (b) entered into for
purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided, however, that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning. The term "Guarantor" shall mean any Person Guaranteeing
any obligation.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any Interest Rate Agreement.
"Holder" means the Person in whose name a Security is registered on the
Registrar's books.
"Incur" means issue, assume Guarantee, incur or otherwise become liable
for; provided, however, that any Indebtedness or Capital Stock of a Person
existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Person at the time it becomes a Subsidiary. The term "Incurrence" when used as a
noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall not be deemed the
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination, without duplication:
(a) the principal of and premium (if any) in respect of indebtedness
of such Person for borrowed money;
(b) the principal of and premium (if any) in respect of obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments;
(c) all obligations of such Person in respect of letters of credit or
other similar instruments (including reimbursement obligations with respect
thereto);
(d) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables), which
purchase price is due more than six months after the date of placing such
property in service or taking delivery and title thereto or the completion
of such services;
(e) all Capitalized Lease Obligations and all Attributable Debt of
such Person;
(f) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Subsidiary of such Person that is not a Note Guarantor,
any Preferred Stock (but excluding, in each case, any accrued dividends);
(g) all indebtedness of other Persons secured by a Lien on any asset
of such Person, whether or not such indebtedness is assumed by such Person;
provided, however, that the amount of indebtedness of such Person shall be
the lesser of (i) the Fair Market Value of such asset at such date of
determination and (ii) the amount of such Indebtedness of such other
Persons;
(h) Hedging Obligations of such Person; and
(i) all obligations of the type referred to in clauses (a) through (h)
of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
Guarantee.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Interest Rate Agreement" means, with respect to any Person, any interest
rate protection agreement, interest rate future agreement, interest rate option
agreement, interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, interest rate hedge agreement or other similar agreement
or arrangement to which such Person is party or of which it is a beneficiary.
"Investment" in any Person means any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of the lender) or other
extension of credit (including by way of Guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by such Person. For purposes of the definition of
"Unrestricted Subsidiary" and Section 4.04, (a) "Investment" shall include the
portion (proportionate to the Parent's equity interest in such Subsidiary) of
the Fair Market Value of the net assets of any Subsidiary of the Parent at the
time that such Subsidiary is designated an Unrestricted Subsidiary; provided,
however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Parent shall be deemed to continue to have a permanent
"Investment" in an Unrestricted Subsidiary in an amount (if positive) equal to
(i) the Parent's "Investment" in such Subsidiary at the time of such
redesignation less (ii) the portion (proportionate to the Parent's equity
interest in such Subsidiary) of the Fair Market Value of the net assets of such
Subsidiary at the time of such redesignation; and (b) any property transferred
to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value
at the time of such transfer.
"Investment Grade Rating" means a rating equal to or higher than Baa3 (or
the equivalent) by Moody's Investors Service, Inc. or BBB- (or the equivalent)
by Standard & Poor's Ratings Services, Inc., as each such company is defined
in the definition of "Rating Agency".
"Issue Date", with respect to any Initial Securities, means the date on
which the Initial Securities are originally issued.
"Legal Holiday" means a Saturday, Sunday or other day on which banking
institutions are not required by law or regulation to be open in the State of
New York.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"liquidated damages" means any liquidated damages payable under a
Registration Agreement.
"Net Available Cash" from an Asset Disposition means cash payments received
(including any cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or otherwise and proceeds from the
sale or other disposition of any securities received as consideration, but only
as and when received, but excluding any other consideration received in the form
of assumption by the acquiring Person of Indebtedness or other obligations
relating to the properties or assets that are the subject of such Asset
Disposition or received in any other noncash form) therefrom, in each case net
of (a) all legal, title and recording tax expenses, commissions and other fees
and expenses incurred, and all federal, state, provincial, foreign and local
taxes required to be paid or accrued as a liability under GAAP, as a consequence
of such Asset Disposition, (b) all payments made on any Indebtedness that is
secured by any assets subject to such Asset Disposition, in accordance with the
terms of any Lien upon or other security agreement of any kind with respect to
such assets, or that must by its terms, or in order to obtain a necessary
consent to such Asset Disposition, or by applicable law be repaid out of the
proceeds from such Asset Disposition, (c) all distributions and other payments
required to be made to minority interest holders in Subsidiaries or joint
ventures as a result of such Asset Disposition and (d) appropriate amounts to be
provided by the seller as a reserve, in accordance with GAAP, against any
liabilities associated with the property or other assets disposed of in such
Asset Disposition and retained by the Parent or any Restricted Subsidiary after
such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of Capital Stock,
means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Note Guarantee" means each Guarantee of the obligations with respect to
the Securities issued by a Person pursuant to the terms of this Indenture.
"Note Guarantor" means any Person that has issued a Note Guarantee.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the
Chief Financial Officer, the President, any Vice President, the Treasurer or the
Secretary of the Parent. "Officer" of a Note Guarantor has a correlative
meaning.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Parent, the Company, a Note Guarantor or the Trustee.
"Parent" means Kansas City Southern, a Delaware corporation, until a
successor replaces it and, thereafter, means such successor.
"Permitted Business" means any business engaged in by the Parent or any
Restricted Subsidiary on the Closing Date and any Related Business.
"Permitted Investment" means an Investment by the Parent or any Restricted
Subsidiary in (a) the Parent, a Restricted Subsidiary or a Person that will,
upon the making of such Investment, become a Restricted Subsidiary; provided,
however, that the primary business of such Restricted Subsidiary is a Permitted
Business; (b) another Person if as a result of such Investment such other Person
is merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Parent or a Restricted Subsidiary;
provided, however, that such Person's primary business is a Permitted Business;
(c) Temporary Cash Investments; (d) receivables owing to the Parent or any
Restricted Subsidiary if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms; provided,
however, that such trade terms may include such concessionary trade terms as the
Parent or any such Restricted Subsidiary deems reasonable under the
circumstances; (e) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of business;
(f) loans or advances to employees made in the ordinary course of business
consistent with past practices of the Parent or such Restricted Subsidiary and
not exceeding $2.0 million in the aggregate outstanding at any one time; (g)
Stock Purchase Loans not exceeding $3.0 million in the aggregate outstanding at
any one time; (h) stock, obligations or securities received in settlement of
debts created in the ordinary course of business and owing to the Parent or any
Restricted Subsidiary or in satisfaction of judgments; (i) any Person to the
extent such Investment represents the noncash portion of the consideration
received for an Asset Disposition that was made pursuant to and in compliance
with Section 4.06; (j) The Texas Mexican Railway Company or any other domestic
railway company that owns railways that are contiguous with those owned by the
Company in the form of Guarantees for the benefit of, or capital contributions
or loans to, or sale/leaseback transactions with, The Texas Mexican Railway
Company or such other domestic railway company; provided, however, that the
aggregate amount of such capital contributions, loans and guaranteed
Indebtedness and sale/leaseback transactions shall not exceed $25.0 million; (k)
any company that is engaged in the same line of business as the Company or a
related line of business in the form of Guarantees for the benefit of, or
capital contributions or loans to, or sale/leaseback transactions with, such
company; provided, however, that the aggregate amount of such capital
contributions, loans and guaranteed Indebtedness and sale/leaseback transactions
shall not exceed $25.0 million; (l) Grupo TFM Investments; or (m) the Panama
Canal Railway Company; provided, however, that the aggregate amount of all such
Investments made after the Closing Date shall not exceed $15.0 million.
"Permitted Liens" means, with respect to any Person:
(a) Liens to secure Indebtedness permitted pursuant to clauses (b)(i)
and (b)(vii) of Section 4.03;
(b) Liens for taxes, assessments or governmental charges or levies on
such Person's property if the same shall not at the time be delinquent or
thereafter can be paid without penalty or are being contested in good faith
and by appropriate proceedings;
(c) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens and other similar Liens arising in the ordinary course of
business that secure payment of obligations (i) that are being contested in
good faith by appropriate proceedings or (ii) for which such Person or any
of its Subsidiaries, as applicable, has posted a bond supported only by
cash;
(d) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, laws providing for old age
pensions or other social security or retirement benefits, or similar
legislation or good faith deposits in connection with bids, tenders,
contracts (other than for the payment of Indebtedness) or leases to which
such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or United States government
bonds to secure surety or appeal bonds to which such Person is a party, or
deposits as security for contested taxes or import duties or for the
payment of rent, in each case Incurred in the ordinary course of business;
(e) utility easements, building restrictions and such other
encumbrances or charges against real property and defects and
irregularities in the title thereto or facts an accurate survey of the
property would show and landlords' and lessors' liens under leases to which
such Person or any of its Subsidiaries is a party, none of which in any
material way affect the marketability of the same or interfere with the use
thereof in the ordinary course of the business of such Person or its
Subsidiaries;
(f) Liens existing on the Closing Date;
(g) any Lien on any property or asset prior to the acquisition thereof
by such Person or any of its Subsidiaries or existing on any property or
asset of any other Person that becomes a Subsidiary of such Person after
the Closing Date prior to the time such other Person becomes a Subsidiary
of such Person; provided, however, that (i) such Lien is not created,
Incurred or assumed in contemplation of or in connection with such
acquisition or such other Person's becoming a Subsidiary of such Person, as
the case may be, (ii) such Lien shall not apply to any other property or
assets of such Person or its Subsidiaries and (iii) such Lien shall secure
only those obligations which it secures on the date of such acquisition or
the date such other Person becomes a Subsidiary of such Person, as the case
may be;
(h) Liens on fixed or capital assets acquired, constructed or improved
by such Person or any of its Subsidiaries; provided, however, that (i) such
Liens secure Indebtedness permitted pursuant to Section 4.03(b)(vi), (ii)
such Liens and the Indebtedness secured thereby are Incurred prior to or
within 180 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does
not exceed the cost of acquiring, constructing or improving such fixed or
capital assets and (iv) such Liens shall not apply to any other property or
assets of such Person or any of its Subsidiaries;
(i) judgment Liens in respect of judgments that do not constitute an
Event of Default pursuant to Section 6.01(i);
(j) Liens securing Indebtedness or other obligations of a Subsidiary
of such Person owing to such Person or a Wholly Owned Subsidiary of such
Person;
(k) Liens in favor of issuers of surety bonds or letters of credit
issued pursuant to the request of and for the account of such Person in the
ordinary course of business; provided, however, that such letters of credit
do not constitute Indebtedness;
(l) Liens securing obligations under Interest Rate Agreements so long
as such obligations relate to Indebtedness that is, and is permitted under
this Indenture to be, secured by a Lien on the same property securing such
obligations; and
(m) Liens to secure any Refinancing (or successive Refinancings) as a
whole, or in part, of any Indebtedness secured by any Lien referred to in
the foregoing clauses (f), (g) and (h); provided, however, that:
(i) such new Lien shall be limited to all or part of the same
property that secured the original Lien (plus improvements to or on
such property) and
(ii) the Indebtedness secured by such Lien at such time is not
increased to any amount greater than the sum of: (1) the outstanding
principal amount or, if greater, committed amount of Indebtedness
secured by Liens described under clauses (f), (g) or (h) at the time
the original Lien became a Permitted Lien under this Indenture and (2)
an amount necessary to pay any fees and expenses, including premiums,
related to such Refinancings.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) that is preferred as
to the payment of dividends, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over shares
of Capital Stock of any other class of such Person.
"principal" of a Security means the principal of the Security plus the
premium, if any, payable on the Security that is due or overdue or is to become
due at the relevant time.
"Purchase Money Indebtedness" means Indebtedness (a) consisting of the
deferred purchase price of an asset, conditional sale obligations, obligations
under any title retention agreement and other purchase money obligations, in
each case if the maturity of such Indebtedness does not exceed the anticipated
useful life of the asset being financed, and (b) Incurred to finance the
acquisition by the Parent or a Restricted Subsidiary of such asset, including
additions and improvements; provided, however, that such Indebtedness is
incurred within 180 days after the acquisition by the Parent or such Restricted
Subsidiary of such asset.
"Rating Agency" means Standard & Poor's Ratings Services, Inc. and
Moody's Investors Service, Inc. or, if Standard & Poor's Ratings Services,
Inc. or Moody's Investors Service, Inc. or both shall not make a rating on the
Securities publicly available, a nationally recognized statistical rating agency
or agencies, as the case may be, selected by the Parent (as certified by the
Board of Directors) that shall be substituted for Standard & Poor's Ratings
Services, Inc. or Moody's Investors Service, Inc. or both, as the case may be.
"Refinance" means, in respect of any Indebtedness, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue other
Indebtedness in exchange or replacement for, such Indebtedness. "Refinanced" and
"Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred to refund,
refinance, replace, renew, repay or extend (including pursuant to any defeasance
or discharge mechanism) any Indebtedness of the Parent or any Restricted
Subsidiary existing on the Closing Date or Incurred in compliance with this
Indenture (including Indebtedness of the Parent that Refinances Refinancing
Indebtedness); provided, however, that (a) the Refinancing Indebtedness has a
Stated Maturity no earlier than the Stated Maturity of the Indebtedness being
Refinanced, (b) the Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is Incurred that is equal to or greater than the
Average Life of the Indebtedness being refinanced, (c) such Refinancing
Indebtedness is Incurred in an aggregate principal amount (or if issued with
original issue discount, an aggregate issue price) that is equal to or less than
the aggregate principal amount (or if issued with original issue discount, the
aggregate accreted value) then outstanding of the Indebtedness being Refinanced
and (d) if the Indebtedness being refinanced is subordinated in right of payment
to the Securities, such Refinancing Indebtedness is subordinated in right of
payment to the Securities at least to the same extent as the Indebtedness being
Refinanced; provided further, however, that Refinancing Indebtedness shall not
include (i) Indebtedness of a Restricted Subsidiary that Refinances Indebtedness
of the Company or (ii) Indebtedness of the Parent or a Restricted Subsidiary
that Refinances Indebtedness of an Unrestricted Subsidiary.
"Related Business" means any business related, ancillary or complementary
to the businesses of the Parent and the Restricted Subsidiaries on the Closing
Date.
"Restricted Subsidiary" means the Company and any other Subsidiary of the
Parent other than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement entered into after the
Closing Date relating to property now owned or hereafter acquired by the Parent
or a Restricted Subsidiary whereby the Parent or a Restricted Subsidiary
transfers such property to a Person and the Parent or such Restricted Subsidiary
leases it from such Person, other than leases between the Parent and a Wholly
Owned Subsidiary or between Wholly Owned Subsidiaries.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company secured by a
Lien. "Secured Indebtedness" of a Note Guarantor has a correlative meaning.
"Securities" means the Securities issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" of the Company or any Note Guarantor means the
principal of, premium (if any) and accrued and unpaid interest on (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization of the Company or any Note Guarantor, regardless of whether or
not a claim for post-filing interest is allowed in such proceedings) and fees
and other amounts owing in respect of, Bank Indebtedness and all other
Indebtedness of the Company or any Note Guarantor, as applicable, whether
outstanding on the Closing Date or thereafter Incurred, unless in the instrument
creating or evidencing the same or pursuant to which the same is outstanding it
is provided that such obligations are subordinated in right of payment to the
Securities or such Note Guarantor's Note Guarantee, as applicable; provided,
however, that Senior Indebtedness shall not include (a) any obligation of the
Company to the Parent or any other Subsidiary of the Parent or any obligation of
such Note Guarantor to the Parent or any other Subsidiary of the Parent, (b) any
liability for federal, state, local or other taxes owed or owing by the Company
or such Note Guarantor, as applicable, (c) any accounts payable or other
liability to trade creditors arising in the ordinary course of business
(including Guarantees thereof or instruments evidencing such liabilities), (d)
any Indebtedness or obligation of the Company or such Note Guarantor (and any
accrued and unpaid interest in respect thereof) that by its terms is subordinate
or junior in any respect to any other Indebtedness or obligation of the Company
or such Note Guarantor, as applicable, including any Subordinated Obligations,
(e) any obligations with respect to any Capital Stock or (f) any Indebtedness
Incurred in violation of this Indenture.
"Significant Subsidiary" means any Restricted Subsidiary other than the
Company that would be a "Significant Subsidiary" of the Parent within the
meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the final payment of principal of
such security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency beyond the control of the Company unless such contingency has
occurred).
"Stock Purchase Loans" means loans or advances made by the Parent or any
Restricted Subsidiary in the ordinary course of business to employees for the
purpose of purchasing restricted shares of common stock of the Parent.
"Subordinated Obligation" means any Indebtedness of the Company (whether
outstanding on the Closing Date or thereafter Incurred) that is subordinate or
junior in right of payment to the Securities pursuant to a written agreement.
"Subordinated Obligation" of a Note Guarantor has a correlative meaning.
"Subsidiary" of any Person means any corporation, association, partnership
or other business entity of which more than 50% of the total voting power of
shares of Capital Stock or other interests (including partnership interests)
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by (a) such Person, (b) such Person and one
or more Subsidiaries of such Person or (c) one or more Subsidiaries of such
Person.
"Temporary Cash Investments" means any of the following: (a) any investment
in direct obligations of the United States of America or any agency thereof or
obligations Guaranteed by the United States of America or any agency thereof,
(b) investments in time deposit accounts, certificates of deposit and money
market deposits maturing within 180 days of the date of acquisition thereof
issued by a bank or trust company that is organized under the laws of the United
States of America, any state thereof or any foreign country recognized by the ,
United States of America having capital, surplus and undivided profits
aggregating in excess of $250,000,000 (or the foreign currency equivalent
thereof) and whose long-term debt is rated "A" (or such similar equivalent
rating) or higher by at least one nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities Act), (c) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (a) above entered into with a bank meeting the
qualifications described in clause (b) above, (d) investments in commercial
paper, maturing not more than 270 days after the date of acquisition, issued by
a corporation (other than an Affiliate of the Parent) organized and in existence
under the laws of the United States of America or any foreign country recognized
by the United States of America with a rating at the time as of which any
investment therein is made of "P-1" (or higher) according to Moody's Investors
Services, Inc. or "A-1 " (or higher) according to Standard and Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc. ("S&P"), and (e)
investments in securities with maturities of six months or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States of America, or by any political subdivision or taxing
authority thereof, and rated at least "A" by S&P or "A" by Moody's Investors
Service, Inc.
"TFM" means Transportacion Ferroviaria Mexicana, S.A. de C.V.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb)
as in effect on the Closing Date, except as provided in Section 9.03.
"Trade Payables" means, with respect to any Person, any accounts payable or
any indebtedness or monetary obligation to trade creditors created, assumed or
Guaranteed by such Person arising in the ordinary course of business in
connection with the acquisition of goods or services.
"Trust Officer" means any officer within the corporate trust department of
the Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person's knowledge of and
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.
"Trustee" means the party named as such in this Indenture until a successor
replaces it and, thereafter, means the successor.
"Uniform Commercial Code" means the New York Uniform Commercial Code as in
effect from time to time.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Parent that at
the time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below and (b) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of
the Parent (including any newly acquired or newly formed Subsidiary of the
Parent but excluding the Company) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of,
or owns or holds any Lien on any property of, the Parent or any other Subsidiary
of the Parent that is not a Subsidiary of the Subsidiary to be so designated;
provided, however, that either (i) the Subsidiary to be so designated has total
assets consolidated with those of its subsidiaries in accordance with GAAP
consistently applied of $1,000 or less or (ii) if such Subsidiary has assets
consolidated with those of its subsidiaries in accordance with GAAP consistently
applied greater than $1,000, then such designation would be permitted under
Section 4.04. The Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided, however, that immediately after giving
effect to such designation (a) the Parent could Incur $1.00 of additional
Indebtedness under Section 4.03(a) and (b) no Default shall have occurred and be
continuing. Any such designation of a Subsidiary as a Restricted Subsidiary or
Unrestricted Subsidiary by the Board of Directors shall be evidenced to the
Trustee by promptly filing with the Trustee a copy of the resolution of the
Board of Directors giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
provisions.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) 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.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the Parent all
the Capital Stock of which (other than directors' qualifying shares) is owned by
the Parent or another Wholly Owned Subsidiary.
SECTION 1.02 Other Definitions.
Defined in
Term Section
- ---- ----------
"Additional Security" ....................................... 1.01
"Affiliate Transaction" ..................................... 4.07(a)
"Appendix" .................................................. 1.01
"Bankruptcy Law" ............................................ 6.01
"beneficially own" .......................................... 1.01
"Change of Control Offer" ................................... 4.08(b)
"covenant defeasance option" ................................ 8.01 (b)
"Custodian" ................................................. 6.01
"Definitive Securities" ..................................... Appendix A
"Event of Default" .......................................... 6.01
"Exchange Securities" ....................................... 1.01
"Global Securities" ......................................... Appendix A
"Guaranteed Obligations" .................................... 10.01
"incorporated provision" .................................... 11.01
"Initial Securities" ........................................ 1.01
"legal defeasance option" ................................... 8.01(b)
"Legal Holiday" ............................................. 11.08
"Notice of Default" ......................................... 6.01
"Offer" ..................................................... 4.06(b)
"Offer Amount" .............................................. 4.06(c)(ii)
"Offer Period" .............................................. 4.06(c)(ii)
"Original Securities" ....................................... 1.01
"Paying Agent" .............................................. 2.04
"Private Exchange" .......................................... Appendix A
"Private Exchange Securities" ............................... Appendix A
"protected purchaser" ....................................... 2.08
"Purchase Date" ............................................. 4.06(c)(i)
"Registered Exchange Offer" ................................. Appendix A
"Registrar" ................................................. 2.03
"Registration Agreement" .................................... Appendix A
"Restricted Payment" ........................................ 4.04(a)
"Securities Custodian" ...................................... Appendix A
"Successor Company" ......................................... 5.01(a)
SECTION 1.03 Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities and the Note Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, the Note
Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined in the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
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) "including" means including without limitation;
(e) words in the singular include the plural and words in the plural
include the singular;
(f) the principal amount of any non-interest bearing or other discount
security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP; and
(g) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater.
ARTICLE 2
The Securities
SECTION 2.01 Amount of Securities; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more series.
All Securities of any one series shall be substantially identical except as to
denomination.
With respect to any Additional Securities issued after the Closing Date
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section
2.07, 2.08, 2.09, 2. 10 or 3.06 or the Appendix), there shall be (a) established
in or pursuant to a resolution of the Board of Directors and (b) (i) set forth
or determined in the manner provided in an Officers' Certificate or (ii)
established in one or more indentures supplemental hereto, prior to the issuance
of such Additional Securities:
(1) whether such Additional Securities shall be issued as part of a
new or existing series of Securities and the title of such Additional
Securities (which shall distinguish the Additional Securities of the series
from Securities of any other series);
(2) the issue price and issuance date of such Additional Securities,
including the date from which interest on such Additional Securities shall
accrue; provided, however, that no Additional Securities may be issued at a
price that would cause such Additional Securities to have "original issue
discount" within the meaning of Section 1273 of the Code;
(3) if applicable, that such Additional Securities shall be issuable
in whole or in part in the form of one or more Global Securities and, in
such case, the respective depositaries for such Global Securities, the form
of any legend or legends which shall be borne by such Global Securities in
addition to or in lieu of those set forth in Exhibit A hereto and any
circumstances in addition to or in lieu of those set forth in Section 2.2
of the Appendix in which any such Global Security may be exchanged in whole
or in part for Additional Securities registered, or any transfer of such
Global Security in whole or in part may be registered, in the name or names
of Persons other than the depositary for such Global Security or a nominee
thereof; and
(4) if applicable, that such Additional Securities shall not be issued
in the form of Initial Securities as set forth in Exhibit A, but shall be
issued in the form of Exchange Securities as set forth in Exhibit B.
If any of the terms of any Additional Securities are established by action
taken pursuant to a resolution of the Board of Directors, a copy of an
appropriate record of such action shall be certified by the Secretary or any
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate or the indenture supplemental hereto
setting forth the terms of the Additional Securities.
SECTION 2.02 Form and Dating. Provisions relating to the Original
Securities, the Additional Securities, the Private Exchange Securities and the
Exchange Securities are set forth in the Appendix, which is hereby incorporated
in and expressly made a part of this Indenture. The (a) Original Securities and
the Trustee's certificate of authentication, (b) Private Exchange Securities and
the Trustee's certificate of authentication and (c) any Additional Securities
(if issued as Transfer Restricted Securities) and the Trustee's certificate of
authentication shall each be substantially in the form of Exhibit A hereto,
which is hereby incorporated in and expressly made a part of this Indenture. The
Exchange Securities and any Additional Securities issued other than as Transfer
Restricted Securities and the Trustee's certificate of authentication shall each
be substantially in the form of Exhibit B hereto, which is hereby incorporated
in and expressly made a part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Parent, the Company or any Note Guarantor is subject, if
any, or usage (provided that any such notation, legend or endorsement is in a
form acceptable to the Company). Each Security shall be dated the date of its
authentication. The Securities shall be issuable only in registered form without
interest coupons and only in denominations of $1,000 and integral multiples
thereof.
SECTION 2.03 Execution and Authentication. Two Officers shall sign the
Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security. The signature
shall be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate and make available for delivery Securities
as set forth in the Appendix.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Company to authenticate the Securities. Any such appointment shall be
evidenced by an instrument signed by a Trust Officer, a copy of which shall be
furnished to the Company. Unless limited by the terms of such appointment, 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 any
Registrar, Paying Agent or agent for service of notices and demands.
SECTION 2.04 Registrar and Paying Agent. (a) The Company shall maintain an
office or agency where Securities may be presented for registration of transfer
or for exchange (the "Registrar") and an office or agency where Securities may
be presented for payment (the "Paying Agent"). The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may
have one or more co-registrars and one or more additional paying agents. The
term "Paying Agent" includes any additional paying agent, and the term
"Registrar" includes any co-registrars. The Company initially appoints the
Trustee as (i) Registrar and Paying Agent in connection with the Securities and
(ii) the Securities Custodian with respect to the Global Securities.
(b) The Company shall enter into an appropriate agency agreement with
any Registrar or Paying Agent not a party to this Indenture, which shall
incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of any such agent. If the
Company fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.07. The Parent or any of its domestically organized
Wholly Owned Subsidiaries, including the Company, may act as Paying Agent
or Registrar.
(c) The Company may remove any Registrar or Paying Agent upon written
notice to such Registrar or Paying Agent and to the Trustee; provided,
however, that no such removal shall become effective until (i) acceptance
of an appointment by a successor as evidenced by an appropriate agreement
entered into by the Company and such successor Registrar or Paying Agent,
as the case may be, and delivered to the Trustee or (ii) notification to
the Trustee that the Trustee shall serve as Registrar or Paying Agent until
the appointment of a successor in accordance with clause (i) above.
Thereupon the removal shall become effective and the successor or Trustee,
as the case may be, shall have all the rights, powers and duties of the
Registrar or Paying Agent under this Indenture. The Registrar or Paying
Agent may resign at any time upon written notice to the Company and the
Trustee.
SECTION 2.05 Paying Agent to Hold Money in Trust. On or prior to each due
date of the principal of and interest and liquidated damages (if any) on any
Security, the Company shall deposit with the Paying Agent (or if the Company or
a Wholly Owned Subsidiary is acting as Paying Agent, segregate and hold in trust
for the benefit of the Persons entitled thereto) a sum sufficient to pay such
principal, interest and liquidated damages (if any) when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal of
and interest and liquidated damages (if any) on the Securities, and shall notify
the Trustee of any default by the Company in making any such payment. If the
Parent, the Company or a Subsidiary of the Parent acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund. The Company at any time may require a Paying Agent to pay all money held
by it to the Trustee and to account for any funds disbursed by the Paying Agent.
Upon complying with this Section, the Paying Agent shall have no further
liability for the money delivered to the Trustee.
SECTION 2.06 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 Holders. If the Trustee is not the Registrar, the Company shall
furnish, or cause the Registrar to furnish, to the Trustee, in writing at least
five 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 Holders.
SECTION 2.07 Transfer and Exchange. The Securities shall be issued in
registered form and shall be transferable only upon the surrender of a Security
for registration of transfer and in compliance with the Appendix. When a
Security is presented to the Registrar with a request to register a transfer,
the Registrar shall register the transfer as requested if its requirements
therefor are met. When Securities are presented to the Registrar with a request
to exchange them for an equal principal amount of Securities of other
denominations, the Registrar shall make the exchange as requested if the same
requirements are met. To permit registration of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Securities at the
Registrar's request. The Company may require payment of a sum sufficient to pay
all taxes, assessments or other governmental charges in connection with any
transfer or exchange pursuant to this Section. The Company shall not be required
to make and the Registrar need not register transfers or exchanges of Securities
selected for redemption (except, in the case of Securities to be redeemed in
part, the portion thereof not to be redeemed) or any Securities for a period of
15 days before the mailing of a notice of redemption of Securities.
Prior to the due presentation for registration of transfer of any Security,
the Company, the Note Guarantors, the Trustee, the Paying Agent, and the
Registrar may deem and treat the Person in whose name a Security is registered
as the absolute owner of such Security for the purpose of receiving payment of
principal of and (subject to paragraph 2 of the Securities) interest, if any, on
such Security and for all other purposes whatsoever, whether or not such
Security is overdue, and none of the Company, any Note Guarantor, the Trustee,
the Paying Agent, or the Registrar shall be affected by notice to the contrary.
Any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interest in such Global Security
may be effected only through a book-entry system maintained by (a) the Holder of
such Global Security (or its agent) or (b) any Holder of a beneficial interest
in such Global Security, and that ownership of a beneficial interest in such
Global Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant to the terms
of this Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Securities surrendered upon such transfer
or exchange.
SECTION 2.08 Replacement Securities. If a mutilated Security is surrendered
to the Registrar or if the Holder of a Security claims that the Security has
been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security if the requirements of Section
8-405 of the Uniform Commercial Code are met, such that the Holder (a) satisfies
the Company or the Trustee within a reasonable time after such Holder has notice
of such loss, destruction or wrongful taking and the Registrar does not register
a transfer prior to receiving such notification, (b) makes such request to the
Company or the Trustee prior to the Security being acquired by a protected
purchaser as defined in Section 8-303 of the Uniform Commercial Code (a
"protected purchaser") and (c) satisfies any other reasonable requirements of
the Trustee. Such Holder shall furnish an indemnity bond sufficient in the
judgment of the Trustee to protect the Company, the Trustee, the Paying Agent
and the Registrar from any loss that any of them may suffer if a Security is
replaced. The Company and the Trustee may charge the Holder for their expenses
in replacing a Security. In the event any such mutilated, lost, destroyed or
wrongfully taken Security has become or is about to become due and payable, the
Company in its discretion may pay such Security instead of issuing a new
Security in replacement thereof.
Every replacement Security is an obligation of the Company.
The provisions of this Section 2.08 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, lost, destroyed or wrongfully taken Securities.
SECTION 2.09 Outstanding Securities. Securities outstanding at any time are
all Securities authenticated by the Trustee except for those cancelled by it,
those delivered to it for cancellation and those described in this Section as
not outstanding. Subject to Section 11.06, a Security does not cease to be
outstanding because the Company or an Affiliate of the Company holds the
Security.
If a Security is replaced or paid pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced or paid Security is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance with this
Indenture, on a redemption date or maturity date money sufficient to pay all
principal, interest and liquidated damages, if any, payable on that date with
respect to the Securities (or portions thereof) to be redeemed or maturing, as
the case may be, then on and after that date such Securities (or portions
thereof) cease to be outstanding and interest on them ceases to accrue.
SECTION 2.10 Temporary Securities. In the event that Definitive Securities
are to be issued under the terms of this Indenture, until such Definitive
Securities are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of Definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall, upon the written order of the
Company, authenticate Definitive Securities and deliver them in exchange for
temporary Securities upon surrender of such temporary Securities at the office
or agency of the Company, without charge to the Holder.
SECTION 2.11 Cancellation. The Company at any time may deliver Securities
to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Securities surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and shall dispose of cancelled Securities in accordance with its
customary procedures or deliver cancelled Securities to the Company pursuant to
written direction by an Officer. The Company may not issue new Securities to
replace Securities it has redeemed, paid or delivered to the Trustee for
cancellation. The Trustee shall not authenticate Securities in place of
cancelled Securities other than pursuant to the terms of this Indenture.
SECTION 2.12 Defaulted Interest. If the Company defaults in a payment of
interest on the Securities, the Company shall pay the defaulted interest (plus
interest on such defaulted interest to the extent lawful) in any lawful manner.
The Company may pay the defaulted interest to the Persons who are Holders on a
subsequent special record date. The Company shall fix or cause to be fixed any
such special record date and payment date to the reasonable satisfaction of the
Trustee and shall promptly mail or cause to be mailed to each Holder a notice
that states the special record date, the payment date and the amount of
defaulted interest to be paid.
SECTION 2.13 CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use) and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided,
however, that any such notice may 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 a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE 3
Redemption
SECTION 3.01 Notices to Trustee. If the Company elects to redeem Securities
pursuant to paragraph 5 of the Securities, it shall notify the Trustee in
writing of the redemption date and the principal amount of Securities to be
redeemed.
The Company shall give each notice to the Trustee provided for in this
Section at least 60 days before the redemption date unless the Trustee consents
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein. Any such notice may be
cancelled at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
SECTION 3.02 Selection of Securities to Be Redeemed. If fewer than all the
Securities are to be redeemed, the Trustee shall select the Securities to be
redeemed pro rata or by lot or by a method that the Trustee in its sole
discretion shall deem to be fair and appropriate. The Trustee shall make the
selection from outstanding Securities not previously called for redemption. The
Trustee may select for redemption portions of the principal of Securities that
have denominations larger than $1,000. Securities and portions of them the
Trustee selects shall be in amounts of $1,000 or a whole multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly of the Securities or portions of Securities to be redeemed.
SECTION 3.03 Notice of Redemption. (a) At least 30 days but not more than
60 days before a date for redemption of Securities, the Company shall mail a
notice of redemption by first-class mail to each Holder of Securities to be
redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall state:
(i) the redemption date;
(ii) the redemption price and the amount of accrued interest to
the redemption date;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(v) if fewer than all the outstanding Securities are to be
redeemed, the certificate numbers and principal amounts of the
particular Securities to be redeemed;
(vi) that, unless the Company defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture, interest on Securities (or
portion thereof) called for redemption ceases to accrue on and after
the redemption date;
(vii) the CUSIP number, if any, printed on the Securities being
redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities.
(b) At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such
event, the Company shall provide the Trustee with the information required
by this Section.
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 stated in the notice. Upon surrender
to the Paying Agent, such Securities shall be paid at the redemption price
stated in the notice, plus accrued interest and liquidated damages, if any, to
the redemption date; provided, however, that if the redemption date is after a
regular record date and on or prior to the interest payment date, the accrued
interest and liquidated damages, if any, shall be payable to the Holder of the
redeemed Securities registered on the relevant record date. Failure to give
notice or any defect in the notice to any Holder shall not affect the validity
of the notice to any other Holder.
SECTION 3.05 Deposit of Redemption Price. Prior to 10:00 a.m., New York
City time, on the redemption date, the Company shall deposit with the Paying
Agent (or, if the Parent, the Company or a Wholly Owned Subsidiary is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the redemption
price of and accrued interest and liquidated damages, if any, on all Securities
or portions thereof to be redeemed on that date other than Securities or
portions of Securities called for redemption that have been delivered by the
Company to the Trustee for cancellation. On and after the redemption date,
interest shall cease to accrue on Securities or portions thereof called for
redemption so long as the Company has deposited with the Paying Agent funds
sufficient to pay the principal of, plus accrued and unpaid interest and
liquidated damages, if any, on the Securities to be redeemed, unless the Paying
Agent is prohibited from making such payment pursuant to the terms of this
Indenture.
SECTION 3.06 Securities Redeemed in Part. Upon surrender of a Security that
is redeemed in part, the Company shall execute and the Trustee shall
authenticate for the Holder (at the Company's expense) a new Security equal in
principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
Covenants
SECTION 4.01 Payment of Securities. The Company shall promptly pay the
principal of and interest and liquidated damages, if any, on the Securities on
the dates and in the manner provided in the Securities and in this Indenture.
Principal, interest and liquidated damages, if any, shall be considered paid on
the date due if on such date the Trustee or the Paying Agent holds in accordance
with this Indenture money sufficient to pay all principal and interest then due
and the Trustee or the Paying Agent, as the case may be, is not prohibited from
paying such money to the Holders on that date pursuant to the terms of this
Indenture.
The Company shall pay interest on overdue principal at the rate specified
therefor in the Securities, and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
SECTION 4.02 SEC Reports. (a) Whether or not the Parent is then required to
file reports with the SEC, Parent will (i) file with the SEC and provide the
Trustee for delivery to the Holders and prospective Holders (upon request)
within 15 days after it files them with the SEC a copy of its annual report and
the information, documents and other reports that are specified in Sections 13
and 15(d) of the Exchange Act as if it were subject thereto and (ii) furnish to
the Trustee for delivery to the Holders, promptly upon their becoming available,
a copy of its annual report to shareholders and any other information provided
by it to its public shareholders generally. In addition, following an
underwritten primary public offering of common stock of the Company pursuant to
an effective registration statement under the Securities Act, the Parent shall
furnish to the Trustee for delivery to the Holders, promptly upon their becoming
available, copies of the annual report to shareholders and any other information
provided by the Company, as applicable, to its public shareholders generally.
The Parent also will comply with the other provisions of Section 314(a) of the
TIA. Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder.
(b) For so long as the Securities are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act,
the Parent shall furnish to the Holders and prospective purchasers of the
Securities designated by Holders, upon the request of Holders or such
prospective purchasers, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act, unless the Company is then
subject to and in compliance with Section 13 or 15(d) of the Exchange Act.
SECTION 4.03 Limitation on Indebtedness. (a) The Parent will not, and will
not permit any Restricted Subsidiary to, Incur, directly or indirectly, any
Indebtedness; provided, however, that the Parent or any Restricted Subsidiary
that is a Note Guarantor may Incur Indebtedness if on the date of such
Incurrence and after giving effect thereto the Consolidated Coverage Ratio would
be greater than 2.0:1.
(b) Notwithstanding Section 4.03(a), the Parent and the Restricted
Subsidiaries may Incur the following Indebtedness:
(i) Bank Indebtedness in an aggregate principal amount not to
exceed (1) in the case of any term borrowings, $250.0 million less the
aggregate amount of all (A) prepayments of principal from the proceeds
of Asset Dispositions applied to permanently reduce any such
Indebtedness, (B) scheduled repayments of principal of, and reductions
of commitments for, any such Indebtedness and (C) Attributable Debt in
respect of Designated Sale/Leaseback Transactions and (2) in the case
of any borrowings under a revolving credit facility or accounts
receivable financing not treated as an Asset Disposition, $125.0
million;
(ii) Indebtedness of the Parent owed to and held by any Wholly
Owned Subsidiary or Indebtedness of a Restricted Subsidiary owed to
and held by the Parent or any Wholly Owned Subsidiary; provided,
however, that (1) any subsequent issuance or transfer of any Capital
Stock or any other event that results in any such Wholly Owned
Subsidiary ceasing to be a Wholly Owned Subsidiary or any subsequent
transfer of any such Indebtedness (except to the Parent or a Wholly
Owned Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness by the issuer thereof, (2) if the
Company is the obligor on such Indebtedness, such Indebtedness is
expressly subordinated to the prior payment in full in cash of all
obligations with respect to the Notes and (3) if a Note Guarantor is
the obligor on such Indebtedness and such Indebtedness is owed to and
held by a Wholly Owned Subsidiary that is not a Note Guarantor, such
Indebtedness is expressly subordinated to the prior payment in full in
cash of all obligations of such Note Guarantor with respect to its
Note Guarantee;
(iii) Indebtedness (1) represented by the Securities (not
including any Additional Securities) and the Note Guarantees, (2)
outstanding on the Closing Date (other than the Indebtedness described
in clauses (i) and (ii) above) as set forth on Exhibit F hereto, (3)
consisting of Refinancing Indebtedness Incurred in respect of any
Indebtedness described in this clause (iii) (including Indebtedness
that is Refinancing Indebtedness) or Section 4.03(a) and (4)
consisting of Guarantees of any Indebtedness permitted under clauses
(i) and (ii) of this paragraph (b);
(iv) (1) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted
Subsidiary was acquired by the Parent (other than Indebtedness
Incurred in contemplation of, in connection with, as consideration in,
or to provide all or any portion of the funds or credit support
utilized to consummate, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became a
Subsidiary of or was otherwise acquired by the Parent); provided,
however, that on the date that such Restricted Subsidiary is acquired
by the Parent, the Parent would have been able to Incur $1.00 of
additional Indebtedness pursuant to Section 4.03(a) after giving
effect to the Incurrence of such Indebtedness pursuant to this clause
(iv) and (2) Refinancing Indebtedness Incurred by a Restricted
Subsidiary in respect of Indebtedness Incurred by such Restricted
Subsidiary pursuant to this clause (iv);
(v) Indebtedness (1) in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds provided by
the Parent and the Restricted Subsidiaries in the ordinary course of
their business, and (2) under Interest Rate Agreements entered into
for bona fide hedging purposes of the Parent in the ordinary course of
business; provided, however, that such Interest Rate Agreements do not
increase the Indebtedness of the Parent outstanding at any time other
than as a result of fluctuations in interest rates or by reason of
fees, indemnities and compensation payable thereunder;
(vi) Purchase Money Indebtedness and Capitalized Lease
Obligations (in an aggregate principal amount not in excess of 10% of
Consolidated Net Tangible Assets at any time outstanding);
(vii) Attributable Debt in respect of Designated Sale/Leaseback
Transactions in an aggregate principal amount not to exceed $250.0
million; or
(viii) Indebtedness (other than Indebtedness permitted to be
Incurred pursuant to Section 4.03(a) or any other clause of this
Section 4.03(b)) in an aggregate principal amount on the date of
Incurrence that, when added to all other Indebtedness Incurred
pursuant to this clause (viii) and then outstanding, will not exceed
$25.0 million.
(c) Notwithstanding the foregoing, the Company or any Note Guarantor
may not Incur any Indebtedness pursuant to Section 4.03(b) above if the
proceeds thereof are used, directly or indirectly, to repay, prepay,
redeem, defease, retire, refund or refinance any Subordinated Obligations
unless such Indebtedness will be subordinated to the Notes or such Note
Guarantor's Note Guarantee, as applicable, to at least the same extent as
such Subordinated Obligations.
(d) Notwithstanding any other provision of this Section 4.03, the
maximum amount of Indebtedness that the Parent or any Restricted Subsidiary
may Incur pursuant to this Section shall not be deemed to be exceeded
solely as a result of fluctuations in the exchange rates of currencies. For
purposes of determining the outstanding principal amount of any particular
Indebtedness Incurred pursuant to this Section 4.03:
(i) Indebtedness Incurred pursuant to the Credit Agreement prior
to or on the Closing Date shall be treated as Incurred pursuant to
Section 4.03(b)(i);
(ii) Indebtedness permitted by this Section 4.03 need not be
permitted solely by reference to one provision permitting such
Indebtedness but may be permitted in part by one such provision and in
part by one or more other provisions of this Section permitting such
Indebtedness; and
(iii) in the event that Indebtedness meets the criteria of more
than one of the types of Indebtedness described in this Section, the
Parent, in its sole discretion, shall classify such Indebtedness and
only be required to include the amount of such Indebtedness in one of
such clauses.
SECTION 4.04 Limitation on Restricted Payments. (a) The Parent will not,
and will not permit any Restricted Subsidiary, directly or indirectly, to:
(i) declare or pay any dividend, make any distribution on or in
respect of its Capital Stock or make any similar payment (including
any payment in connection with any merger or consolidation involving
the Parent, or any Subsidiary of the Parent) to the direct or indirect
holders of its Capital Stock, except (x) dividends or distributions
payable solely in its Capital Stock (other than Disqualified Stock)
and (y) dividends or distributions payable to the Parent or a
Restricted Subsidiary (and, if such Restricted Subsidiary has
shareholders other than the Parent or other Restricted Subsidiaries,
to its other shareholders on a pro rata basis);
(ii) purchase, repurchase, redeem, retire or otherwise acquire
for value any Capital Stock of the Parent or any Restricted Subsidiary
held by Persons other than the Parent or a Restricted Subsidiary;
(iii) purchase, repurchase, redeem, retire, defease or otherwise
acquire for value, prior to scheduled maturity, scheduled repayment or
scheduled sinking fund payment, any Subordinated Obligations (other
than the purchase, repurchase, redemption, retirement, defeasance or
other acquisition for value of Subordinated Obligations acquired in
anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the
date of acquisition); or
(iv) make any Investment (other than a Permitted Investment) in
any Person (any such dividend, distribution, payment, purchase,
redemption, repurchase, defeasance, retirement, or other acquisition
or Investment being herein referred to as a "Restricted Payment") if,
at the time the Parent or such Restricted Subsidiary makes such
Restricted Payment:
(1) a Default will have occurred and be continuing (or would
result therefrom);
(2) the Parent could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments (the amount so expended, if other than
in cash, to be determined in good faith by the Board of
Directors, whose determination will be conclusive and evidenced
by a resolution of the Board of Directors) declared or made
subsequent to September 27, 2000 would exceed the sum, without
duplication, of:
(A) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from the
beginning of the fiscal quarter immediately following the
fiscal quarter which included September 27, 2000 to the end
of the most recent fiscal quarter ending at least 45 days
prior to the date of such Restricted Payment (or, in case
such Consolidated Net Income will be a deficit, minus 100%
of such deficit);
(B) the aggregate Net Cash Proceeds received by the
Parent or the Company from the issue or sale of its Capital
Stock (other than Disqualified Stock or in respect of
Excluded Contributions) subsequent to September 27, 2000
(other than an issuance or sale to (x) a Subsidiary of the
Parent or (y) an employee stock ownership plan or other
trust established by the Parent or any of its Subsidiaries);
(C) the amount by which Indebtedness of the Parent or
the Restricted Subsidiaries is reduced on the Parent's
balance sheet upon the conversion or exchange (other than by
a Subsidiary of the Parent) subsequent to September 27, 2000
of any Indebtedness of the Parent or the Restricted
Subsidiaries issued after September 27, 2000 which is
convertible or exchangeable for Capital Stock (other than
Disqualified Stock) of the Parent (less the amount of any
cash or the Fair Market Value of other property distributed
by the Parent or any Restricted Subsidiary upon such
conversion or exchange);
(D) the amount equal to the net reduction in
Investments in Unrestricted Subsidiaries resulting from (x)
payments of dividends, repayments of the principal of loans
or advances or other transfers of assets to the Parent or
any Restricted Subsidiary from Unrestricted Subsidiaries or
(y) the redesignation of Unrestricted Subsidiaries as
Restricted Subsidiaries (valued in each case as provided in
the definition of "Investment") not to exceed, in the case
of any Unrestricted Subsidiary, the amount of Investments
previously made by the Parent or any Restricted Subsidiary
in such Unrestricted Subsidiary, which amount was included
in the calculation of the amount of Restricted Payments; and
(E) $40.0 million
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any purchase, repurchase, redemption, retirement or other
acquisition for value of Capital Stock of the Parent made by exchange
for, or out of the proceeds of the substantially concurrent sale of,
Capital Stock of the Parent (other than Disqualified Stock and other
than Capital Stock issued or sold to a Subsidiary of the Parent or an
employee stock ownership plan or other trust established by the Parent
or any of its Subsidiaries); provided, however, that:
(1) such purchase, repurchase, redemption, retirement or
other acquisition for value will be excluded in the calculation
of the amount of Restricted Payments, and
(2) the Net Cash Proceeds from such sale applied in the
manner set forth in this clause (i) will be excluded from the
calculation of amounts under Section 4.04(a)(iv)(3)(B);
(ii) any prepayment, repayment, purchase, repurchase, redemption,
retirement, defeasance or other acquisition for value of Subordinated
Obligations of the Parent made by exchange for, or out of the proceeds
of the substantially concurrent sale of, Indebtedness of the Parent
that is permitted to be Incurred pursuant to Section 4.03(b);
provided, however, that such prepayment, repayment, purchase,
repurchase, redemption, retirement, defeasance or other acquisition
for value will be excluded in the calculation of the amount of
Restricted Payments;
(iii) any prepayment, repayment, purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value of
Subordinated Obligations from Net Available Cash to the extent
permitted by Section 4.06; provided, however, that such prepayment,
repayment, purchase, repurchase, redemption, retirement, defeasance or
other acquisition for value will be excluded in the calculation of the
amount of Restricted Payments;
(iv) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividends would have
complied with Section 4.04(a); provided, however, that such dividends
will be included in the calculation of the amount of Restricted
Payments;
(v) dividends paid by the Parent with respect to the 242,170
outstanding shares of its preferred stock, par value $25.00 per share,
noncumulative dividends of $1.00 per share in amounts each year which
do not exceed $242,170 (the amount paid with respect to such preferred
stock in the year ended December 31, 2001); provided, however, that
such dividends will be included in the calculation of the amount of
Restricted Payments;
(vi) Investments that are made with Excluded Contributions;
provided, however, that such Investments will be excluded in the
calculation of the amount of Restricted Payments; or
(vii) any purchase, repurchase, redemption, retirement or other
acquisition for value of shares of, or options to purchase shares of,
common stock of the Parent or any of its Subsidiaries from employees,
former employees, directors or former directors of the Parent or any
of its Subsidiaries (or permitted transferees of such employees,
former employees, directors or former directors) pursuant to the terms
of agreements (including employment agreements) or plans (or
amendments thereto) approved by the Board of Directors under which
such individuals purchase or sell, or are granted the option to
purchase or sell, shares of such common stock; provided, however, that
the aggregate amount of such purchases, repurchases, redemptions,
retirements and other acquisitions for value will not exceed $3.0
million in any calendar year; provided further, however, that such
purchases, repurchases, redemptions, retirements and other
acquisitions for value shall be excluded in the calculation of the
amount of Restricted Payments.
SECTION 4.05 Limitation on Restrictions on Distributions from Restricted
Subsidiaries. The Parent will not, and will not permit any Restricted Subsidiary
to, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(a) pay dividends or make any other distributions on its Capital Stock
or pay any Indebtedness or other obligations owed to the Parent or any
Restricted Subsidiary;
(b) make any loans or advances to the Parent or any Restricted
Subsidiary; or
(c) transfer any of its property or assets to the Parent or any
Restricted Subsidiary, except:
(i) any encumbrance or restriction pursuant to applicable law or
an agreement in effect at or entered into on the Closing Date;
(ii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness
Incurred by such Restricted Subsidiary prior to the date on which such
Restricted Subsidiary was acquired by the Parent (other than
Indebtedness Incurred as consideration in, in contemplation of, or to
provide all or any portion of the funds or credit support utilized to
consummate the transaction or series of related transactions pursuant
to which such Restricted Subsidiary became a Restricted Subsidiary or
was otherwise acquired by the Parent) and outstanding on such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in clause (i) or (ii) of this Section 4.05(c) or
this clause (iii) or contained in any amendment to an agreement
referred to in clause (i) or (ii) of this Section 4.05(c) or this
clause (iii); provided, however, that the encumbrances and
restrictions contained in any such refinancing agreement or amendment
are no less favorable to the Holders than the encumbrances and
restrictions contained in such predecessor agreements;
(iv) in the case of this clause (c), any encumbrance or
restriction
(A) that restricts in a customary manner the subletting,
assignment or transfer of any property or asset that is subject
to a lease, license or similar contract, or
(B) contained in security agreements securing Indebtedness
of a Restricted Subsidiary to the extent such encumbrance or
restriction restricts the transfer of the property subject to
such security agreements; and
(v) with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of
such Restricted Subsidiary pending the closing of such sale or
disposition.
SECTION 4.06 Limitation on Sales of Assets and Capital Stock. (a) The
Parent will not, and will not permit any Restricted Subsidiary to, make any
Asset Disposition unless:
(i) the Parent or such Restricted Subsidiary receives
consideration (including by way of relief from, or by any other Person
assuming sole responsibility for, any liabilities, contingent or
otherwise) at the time of such Asset Disposition at least equal to the
Fair Market Value of the shares and assets subject to such Asset
Disposition;
(ii) at least 75% of the consideration thereof received by the
Parent or such Restricted Subsidiary is in the form of cash; and
(iii) an amount equal to 100% of the Net Available Cash from such
Asset Disposition is applied by the Parent (or such Restricted
Subsidiary, as the case may be):
(1) first, to the extent the Parent elects (or is required
by the terms of any Indebtedness) to prepay, repay, purchase,
repurchase, redeem, retire, defease or otherwise acquire for
value Bank Indebtedness of the Parent or a Note Guarantor within
360 days after the later of the date of such Asset Disposition or
the receipt of such Net Available Cash;
(2) second, to the extent of the balance of Net Available
Cash after application in accordance with clause (1), to the
extent the Parent or such Restricted Subsidiary elects, to
reinvest in Additional Assets (including by means of an
Investment in Additional Assets by a Restricted Subsidiary with
Net Available Cash received by the Parent or another Restricted
Subsidiary) within 360 days from the later of such Asset
Disposition or the receipt of such Net Available Cash;
(3) third, to the extent of the balance of such Net
Available Cash after application in accordance with clauses (1)
and (2), to make an Offer as defined in paragraph (b) of this
covenant below to purchase Securities pursuant to and subject to
the conditions set forth in Section 4.06(b); provided, however,
that if the Parent or the Company elects (or is required by the
terms of any other Senior Indebtedness), such Offer may be made
ratably to purchase the Securities and other Senior Indebtedness
of the Parent, the Company or any Note Guarantor; and
(4) fourth, to the extent of the balance of such Net
Available Cash after application in accordance with clauses (1),
(2) and (3), for any general corporate purpose permitted by the
terms of this Indenture;
provided, however, that in connection with any prepayment, repayment,
purchase, repurchase, redemption, retirement, defeasance or other
acquisition for value of Indebtedness pursuant to clause (1) or (3)
above, the Parent or such Restricted Subsidiary will retire such
Indebtedness and will cause the related loan commitment (if any) to be
permanently reduced in an amount equal to the principal amount so
prepaid, repaid, purchased, repurchased, redeemed, retired, defeased
or otherwise acquired for value.
Notwithstanding the foregoing provisions of this Section 4.06(a),
the Parent and the Restricted Subsidiaries will not be required to
apply any Net Available Cash in accordance with this Section 4.06(a)
except to the extent that the aggregate Net Available Cash from all
Asset Dispositions that is not applied in accordance with this Section
4.06(a) exceeds $40.0 million.
For the purposes of this Section 4.06(a), the following are
deemed to be cash: (A) the assumption of Indebtedness of the Parent or
any Restricted Subsidiary (other than any Preferred Stock, including
Disqualified Stock, constituting Indebtedness) and the release of the
Parent or such Restricted Subsidiary from all liability on such
Indebtedness in connection with such Asset Disposition, and (B)
securities received by the Parent or any Restricted Subsidiary from
the transferee that are promptly converted by the Parent or such
Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of
Securities (and other Senior Indebtedness) pursuant to Section
4.06(a)(iii)(3), the Parent or the Company will be required (i) to purchase
Securities tendered pursuant to an offer by the Company for the Securities
(the "Offer") at a purchase price of 100% of their principal amount plus
accrued and unpaid interest and liquidated damages thereon, if any, to the
date of purchase (subject to the right of Holders of record on the relevant
date to receive interest due on the relevant interest payment date) in
accordance with the procedures (including prorating in the event of
oversubscription) set forth in Section 4.06(c) and (ii) to purchase other
Senior Indebtedness of the Parent, the Company or any Note Guarantor on the
terms and to the extent contemplated thereby (provided that in no event
shall the Parent or the Company offer to purchase such other Senior
Indebtedness at a purchase price in excess of 100% of its principal amount,
plus accrued and unpaid interest thereon). If the aggregate purchase price
of Securities (and other Senior Indebtedness) tendered pursuant to the
Offer is less than the Net Available Cash allotted to the purchase of the
Securities (and other Senior Indebtedness), the Parent or the Company will
apply the remaining Net Available Cash in accordance with Section
4.06(a)(iii)(4). The Parent and the Company will not be required to make an
Offer for Securities (and other Senior Indebtedness) pursuant to this
Section 4.06 if the Net Available Cash available therefor (after
application of the proceeds as provided in clauses (1) and (2) of this
Section 4.06(a)(iii)) is less than $20.0 million in the aggregate for all
Asset Dispositions after the Closing Date.
(c) (i) Promptly, and in any event within 10 days after the Parent or
the Company becomes obligated to make an Offer, the Parent or the Company
shall be obligated to deliver to the Trustee and send, by first-class mail
to each Holder, a written notice stating that the Holder may elect to have
his Securities purchased by the Parent or the Company either in whole or in
part (subject to prorating as hereinafter described in the event the Offer
is oversubscribed) in integral multiples of $1,000 of principal amount, at
the applicable purchase price. The notice shall specify a purchase date not
less than 30 days nor more than 60 days after the date of such notice (the
"Purchase Date") and shall contain such information concerning the business
of the Parent and the Company as the Parent and the Company in good faith
believe will enable such Holders to make an informed decision (which at a
minimum shall include (1) the most recently filed Annual Report on Form
10-K (including audited consolidated financial statements) of the Parent,
the most recent subsequently filed Quarterly Report on Form 10-Q and any
Current Report on Form 8-K of the Parent filed subsequent to such Quarterly
Report, other than Current Reports describing Asset Dispositions otherwise
described in the offering materials (or corresponding successor reports),
(2) a description of material developments in the Parent's business
subsequent to the date of the latest of such reports, and (3) if material,
appropriate pro forma financial information) and all instructions and
materials necessary to tender Securities pursuant to the Offer, together
with the address referred to in clause (iii).
(ii) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as provided above, the Parent shall
deliver to the Trustee an Officers' Certificate as to (1) the amount
of the Offer (the "Offer Amount"), (2) the allocation of the Net
Available Cash from the Asset Dispositions pursuant to which such
Offer is being made and (3) the compliance of such allocation with the
provisions of Section 4.06(a). On such date, the Parent or the Company
shall also irrevocably deposit with the Trustee or with a paying agent
(or, if the Parent or the Company is acting as its own paying agent,
segregate and hold in trust) an amount equal to the Offer Amount to be
invested in Temporary Cash Investments according to the directions of
the Company and to be held for payment in accordance with the
provisions of this Section. Upon the expiration of the period for
which the Offer remains open (the "Offer Period"), the Parent or the
Company shall deliver to the Trustee for cancellation the Securities
or portions thereof that have been properly tendered to and are to be
accepted by the Parent or the Company. The Trustee (or the Paying
Agent, if not the Trustee) shall, on the date of purchase, mail or
deliver payment to each tendering Holder in the amount of the purchase
price. In the event that the Offer Amount delivered by the Parent or
the Company to the Trustee is greater than the purchase price of the
Securities tendered, the Trustee shall deliver the excess to the
Parent or the Company, as applicable, immediately after the expiration
of the Offer Period for application in accordance with this Section
4.06.
(iii) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly
completed, to the Parent or the Company, as applicable, at the address
specified in the notice at least three Business Days prior to the
Purchase Date. Holders shall be entitled to withdraw their election if
the Trustee or the Parent or the Company, as applicable, receives not
later than one Business Day prior to the Purchase Date a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security which was delivered by
the Holder for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased. If at the
expiration of the Offer Period the aggregate principal amount of
Securities included in the Offer surrendered by Holders thereof
exceeds the Offer Amount, the Parent or the Company shall select the
Securities to be purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Parent or the Company so that only
Securities in denominations of $1,000, or integral multiples thereof,
shall be purchased). Holders whose Securities are purchased only in
part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered.
(iv) At the time the Parent or the Company delivers to the
Trustee Securities which are to be accepted for purchase, the Parent
shall also deliver an Officers' Certificate stating that such
Securities are to be accepted by the Parent or the Company pursuant to
and in accordance with the terms of this Section. A Security shall be
deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to
the surrendering Holder.
(v) The Parent and the Company will comply, to the extent
applicable, with the requirements of Section 14(e) of the Exchange Act
and any other securities laws or regulations in connection with the
repurchase of Securities pursuant to this Section. To the extent that
the provisions of any securities laws or regulations conflict with
provisions of this Section, the Parent and the Company will comply
with the applicable securities laws and regulations and will not be
deemed to have breached their obligations under this Section by virtue
thereof.
SECTION 4.07 Limitation on Transactions with Affiliates. (a) The Parent
will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into or conduct any transaction or series of related
transactions (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any Affiliate of the Parent (an "Affiliate
Transaction") unless such transaction is on terms:
(i) that are no less favorable to the Parent or such Restricted
Subsidiary, as the case may be, than those that could be obtained at
the time of such transaction in arm's-length dealings with a Person
who is not such an Affiliate,
(ii) that, in the event such Affiliate Transaction involves an
aggregate amount in excess of $5.0 million,
(1) are set forth in writing, and
(2) have been approved by a majority of the members of the
Board of Directors having no personal stake in such Affiliate
Transaction, and
(iii) that, in the event such Affiliate Transaction involves an
amount in excess of $20.0 million, have been determined by a
nationally recognized appraisal or investment banking firm to be fair,
from a financial standpoint, to the Parent and its Restricted
Subsidiaries.
(b) The provisions of Section 4.07(a) will not prohibit:
(i) any Restricted Payment permitted to be paid pursuant to
Section 4.04;
(ii) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock options and stock ownership plans
approved by the Board of Directors;
(iii) the grant of stock options or similar rights to employees
and directors of the Parent pursuant to plans approved by the Board of
Directors;
(iv) loans or advances to employees in the ordinary course of
business in accordance with past practices of the Parent, but in any
event not to exceed $2.0 million in the aggregate outstanding at any
one time;
(v) Stock Purchase Loans, but in any event not to exceed $3.0
million in the aggregate outstanding at any one time;
(vi) the payment of reasonable fees to directors of the Parent
and its Subsidiaries who are not employees of the Parent or its
Subsidiaries; or
(vii) any transaction between the Parent and a Wholly Owned
Subsidiary or between Wholly Owned Subsidiaries.
SECTION 4.08 Change of Control. (a) Upon a Change of Control, each Holder
will have the right to require the Company to purchase all or any part of such
Holder's Securities at a purchase price in cash equal to 101% of the principal
amount thereof plus accrued and unpaid interest and liquidated damages, if any,
to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest and liquidated damages, if any, due on
the relevant interest payment date), in accordance with the terms contemplated
in Section 4.08(b); provided, however, that notwithstanding the occurrence of a
Change of Control, the Company shall not be obligated to purchase the Securities
pursuant to this Section 4.08 in the event that it has exercised its right to
redeem all the Securities under paragraph 5 of the Securities.
(b) Within 30 days following any Change of Control (except as provided
in the proviso to the first sentence of Section 4.08(a)), the Company shall
mail a notice to each Holder with a copy to the Trustee (the "Change of
Control Offer") stating:
(i) that a Change of Control has occurred and that such Holder
has the right to require the Company to purchase all or a portion of
such Holder's Securities at a purchase price in cash equal to 101 % of
the principal amount thereof, plus accrued and unpaid interest and
liquidated damages, if any, to the date of purchase (subject to the
right of Holders of record on the relevant record date to receive
interest and liquidated damages, if any, on the relevant interest
payment date);
(ii) the circumstances and relevant facts and financial
information regarding such Change of Control;
(iii) the purchase date (which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed); and
(iv) the instructions determined by the Company, consistent with
this Section, that a Holder must follow in order to have its
Securities purchased.
(c) Holders electing to have a Security purchased shall be required to
surrender the Security, with an appropriate form duly completed, to the
Company, at the address specified in the notice, at least three Business
Days prior to the purchase date. Holders shall be entitled to withdraw
their election if the Trustee or the Company receives, not later than one
Business Day prior to the purchase date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Security which was delivered for purchase by the Holder and a
statement that such Holder is withdrawing his election to have such
Security purchased. Holders whose Securities are purchased only in part
shall be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered.
(d) On the purchase date, all Securities purchased by the Company
under this Section shall be delivered to the Trustee for cancellation, and
the Company shall pay the purchase price plus accrued and unpaid interest
and liquidated damages, if any, to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section, the
Company will not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times, and otherwise in compliance with the requirements set
forth in Section 4.08(b) applicable to a Change of Control Offer made by
the Company and purchases all Securities validly tendered and not withdrawn
under such Change of Control Offer.
(f) At the time the Company delivers Securities to the Trustee which
are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that such Securities are to be accepted by
the Company pursuant to and in accordance with the terms of this Section
4.08. A Security shall be deemed to have been accepted for purchase at the
time the Trustee, directly or through an agent, mails or delivers payment
therefor to the surrendering Holder.
(g) Prior to any Change of Control Offer, the Company shall deliver to
the Trustee an Officers' Certificate stating that all conditions precedent
contained herein to the right of the Company to make such offer have been
complied with.
(h) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities
pursuant to this Section. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section,
the Company will comply with the applicable securities laws and regulations
and will not be deemed to have breached its obligations under this Section
by virtue thereof.
SECTION 4.09 Compliance Certificate. The Company shall deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company an
Officers' Certificate, one of the signers of which shall be the principal
executive, principal accounting or principal financial officer of the Company
stating that in the course of the performance by the signers of their duties as
Officers of the Company they would normally have knowledge of any Default and
whether or not the signers know of any Default that occurred during such period.
If they do, the certificate shall describe the Default, its status and what
action the Company is taking or proposes to take with respect thereto. The
Company also shall comply with Section 314(a)(4) of the TIA.
SECTION 4.10 Further Instruments and Acts. Upon request of the Trustee, the
Company shall execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more effectively the
purpose of this Indenture.
SECTION 4.11 Future Note Guarantors. The Parent will cause (i) at any time
that any Bank Indebtedness is outstanding, each Subsidiary of the Parent (other
than the Company, Caymex Transportation, Inc., SCC Holdings, LLC, The Kansas
City Northern Railway Company and Veals, Inc.) that enters into a Guarantee of
any Bank Indebtedness and (ii) at any time that no Bank Indebtedness is
outstanding, each Subsidiary of the Parent (other than the Company, The Kansas
City Northern Railway Company and Veals, Inc.) that enters into a Guarantee of
any obligations of the Parent or any of its domestic Subsidiaries, to execute
and deliver to the Trustee a supplemental indenture substantially in the form of
Exhibit C pursuant to which such Subsidiary will Guarantee payment of the
Securities. Each Note Guarantee will be limited to an amount not to exceed the
maximum amount that can be Guaranteed by that Note Guarantor without rendering
the Note Guarantee, as it relates to such Note Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, or
similar laws affecting the rights of creditors generally.
SECTION 4.12 Limitation on Lines of Business. The Parent will not, and will
not permit any Restricted Subsidiary to, engage in any business other than a
Permitted Business. At any time that it is not Guaranteeing payment of the
Securities (which shall be effected by executing and delivering to the Trustee a
supplemental indenture in the form set forth in this Indenture), (i) Caymex
Transportation, Inc. will not engage in any business or activity other than the
ownership of the Capital Stock of foreign subsidiaries and activities incidental
thereto, (ii) SCC Holdings LLC, will not engage in any business or activity
other than the ownership of the Capital Stock of Southern Capital LLC and
activities incidental thereto, (iii) TransFin Insurance Ltd. will not engage in
any business or activity other than the insurance business and activities
incidental thereto, and (iv) The Kansas City Northern Railway Company and Veals,
Inc. will not conduct any material business or activity.
SECTION 4.13 Limitation on Liens. The Parent will not, and will not permit
any Restricted Subsidiary to, directly or indirectly, Incur or permit to exist
any Lien of any nature whatsoever on any of its property or assets (including
Capital Stock of a Restricted Subsidiary), whether owned at the Closing Date or
thereafter acquired, other than Permitted Liens, without effectively providing
that the Securities shall be secured equally and ratably with (or prior to) the
obligations so secured for so long as such obligations are so secured; provided,
however, that the Parent and any Restricted Subsidiary may Incur other Liens to
secure Indebtedness as long as the amount of outstanding Indebtedness secured by
Liens Incurred pursuant to this proviso does not exceed 5% of Consolidated Net
Tangible Assets, as determined based on the consolidated balance sheet of the
Parent as of the end of the most recent fiscal quarter ending at least 45 days
prior thereto.
SECTION 4.14 Limitation on Sale/Leaseback Transactions. The Parent will
not, and will not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with respect to any property unless:
(a) the Parent or such Restricted Subsidiary would be entitled to:
(i) Incur Indebtedness in an amount equal to the Attributable
Debt with respect to such Sale/Leaseback Transaction pursuant to
Section 4.03; and
(ii) create a Lien on such property securing such Attributable
Debt without equally and ratably securing the Securities pursuant to
Section 4.13;
(b) the net proceeds received by the Parent or such Restricted
Subsidiary in connection with such Sale/Leaseback Transaction are at least
equal to the Fair Market Value of such property; and
(c) the transfer of such property is permitted by, and the Parent
applies the proceeds of such transaction in compliance with, Section 4.06.
SECTION 4.15 Covenant Suspension. During any period of time that (a) the
Securities have an Investment Grade Rating from both Rating Agencies and (b) no
Default or Event of Default has occurred and is continuing under this Indenture,
the Parent and the Restricted Subsidiaries will not be subject to the following
provisions of the Indenture: Sections 4.03, 4.04, 4.05, 4.06, 4.07 and 4.12
(collectively, the "Suspended Covenants"). In the event that the Parent and the
Restricted Subsidiaries are not subject to the Suspended Covenants for any
period of time as a result of the preceding sentence and, subsequently, one or
both of the Rating Agencies withdraws its ratings or downgrades the ratings
assigned to the Securities below the required Investment Grade Ratings or a
Default or Event of Default (other than as a result of any breach of the
Suspended Covenants) occurs and is continuing, then the Parent and the
Restricted Subsidiaries will thereafter again be subject to the Suspended
Covenants and compliance with the Suspended Covenants with respect to Restricted
Payments made after the time of such withdrawal, downgrade, Default or Event of
Default will be calculated in accordance with the terms of Section 4.04 as
though, for purposes of determining whether new Restricted Payments can be made
after such time, such covenant had been in effect during the entire period of
time from the Issue Date. The Parent shall provide prompt written notice to the
Trustee of any changes in the ratings of the Securities by the Ratings Agencies.
The Trustee shall not be required to notify the Holders of any such changes.
ARTICLE 5
Successor Company
SECTION 5.01 When Company May Merge or Transfer Assets. (a) The Company
will not consolidate with or merge with or into, or convey, transfer or lease
all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a corporation organized and existing under the laws
of the United States of America, any state thereof or the District of
Columbia and the Successor Company (if not the Company) shall
expressly assume, by a supplemental indenture hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company, the Parent or any Restricted Subsidiary as a result of such
transaction as having been Incurred by the Successor Company, the
Parent or such Restricted Subsidiary at the time of such transaction),
no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
Parent would be able to Incur an additional $1.00 of Indebtedness
pursuant to Section 4.03(a);
(iv) immediately after giving effect to such transaction, the
Successor Company will have Consolidated Net Worth in an amount which
is not less than the Consolidated Net Worth of the Parent immediately
prior to such transaction;
(v) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture; and
(vi) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders will not recognize income,
gain or loss for federal income tax purposes as a result of such
transaction and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such transaction had not occurred.
The Successor Company will succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture, but
the predecessor Company in the case of a conveyance, transfer or lease of
all or substantially all its assets shall not be released from the
obligation to pay the principal of and interest on the Securities.
(b) The Note Guarantors will not consolidate with or merge with or
into, or convey, transfer or lease all or substantially all of its assets
to any Person unless: (i) the resulting, surviving or transferee Person
(the "Successor Guarantor") will be a corporation organized and existing
under the laws of the United States of America, any state thereof or the
District of Columbia, and such Person (if not such Note Guarantor) will
expressly assume, by a supplemental indenture, executed and delivered to
the Trustee, in form satisfactory to the Trustee, all the obligations of
such Note Guarantor under its Note Guarantee; (ii) immediately after giving
effect to such transaction (and treating any Indebtedness which becomes an
obligation of the Successor Guarantor or any Restricted Subsidiary as a
result of such transaction as having been Incurred by the Successor
Guarantor or such Restricted Subsidiary at the time of such transaction),
no Default shall have occurred and be continuing; (iii) immediately after
giving effect to such transaction, the Parent or the Successor Guarantor,
as applicable, would be able to Incur an additional $1.00 of Indebtedness
under Section 4.03(a); (iv) immediately after giving effect to such
transaction, the Parent and the Restricted Subsidiaries will have
Consolidated Net Worth in an amount which is not less than the Consolidated
Net Worth of the Parent and the Restricted Subsidiaries immediately prior
to such transaction; (v) the Parent shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture; and (vi) the Parent shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders will not
recognize income, gain or loss for federal income tax purposes as a result
of such transaction and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such transaction had not occurred.
(c) Notwithstanding the foregoing, (i) any Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company or any Note Guarantor; and (ii) the Parent or the
Company may merge with an Affiliate incorporated solely for the purpose of
reincorporating the Parent or the Company, as the case may be, in another
jurisdiction to realize tax or other benefits.
ARTICLE 6
Defaults and Remedies
SECTION 6.01 Events of Default. An "Event of Default" occurs if:
(a) the Company defaults in any payment of interest on any Security
when the same becomes due and payable or in any payment of liquidated
damages, and such default continues for a period of 30 days;
(b) the Company defaults in the payment of the principal of any
Security when the same becomes due and payable at its Stated Maturity, upon
required redemption or repurchase, upon declaration or otherwise;
(c) the Parent or any of its Subsidiaries fails to comply with Section
5.01;
(d) the Parent or any of its Subsidiaries fails to comply with Section
4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13 or 4.14 (other
than a failure to purchase Securities when required under Section 4.06 or
4.08) and such failure continues for 30 days after the notice specified
below;
(e) the Parent or any of its Subsidiaries fails to comply with any of
its agreements in the Securities or this Indenture (other than those
referred to in (a), (b), (c) or (d) above) and such failure continues for
60 days after the notice specified below;
(f) Indebtedness of the Parent or any of its Subsidiaries is not paid
within any applicable grace period after final maturity or the acceleration
by the holders thereof because of a default and the total amount of such
Indebtedness unpaid or accelerated exceeds $20.0 million or its foreign
currency equivalent at the time and such failure continues for 10 days
after the notice specified below;
(g) the Parent, the Company or any Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in
an involuntary case;
(iii) consents to the appointment of a Custodian of it or for
any substantial part of its property; or
(iv) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(h) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Parent, the Company or any
Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Parent, the Company or any
Significant Subsidiary or for any substantial part of its property; or
(iii) orders the winding up or liquidation of the Parent, the
Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days;
(i) any judgment or decree for the payment of money in excess of $
10.0 million or its foreign currency equivalent is entered against the
Parent or any of its Subsidiaries and either (i) an enforcement proceeding
has been commenced by any creditor upon such judgment or decree or (ii)
there is a period of 60 days following the entry of such judgment or decree
during which such judgment or decree is not discharged, waived or the
execution thereof stayed; or
(j) any Note Guarantee ceases to be in full force and effect (except
as contemplated by the terms thereof) or any Note Guarantor or Person
acting by or on behalf of such Note Guarantor denies or disaffirms such
Note Guarantor's obligations under this Indenture or any Note Guarantee and
such Default continues for 10 days after receipt of the notice specified
below.
The foregoing will constitute Events of Default whatever the reason for any
such Event of Default and whether it is voluntary or involuntary or is effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body.
The term "Bankruptcy Law" means Title 11, United States Code, or any
similar federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A default under clauses (d), (e) or (f) will not constitute an Event of
Default until the Trustee notifies the Company, or the Holders of at least 25%
in principal amount of the outstanding Securities notify the Company and the
Trustee of the Default and the Company or the Note Guarantor, as applicable,
does not cure such Default within the time specified in clauses (d), (e) or (f)
hereof after receipt of such notice. Such notice must specify the Default,
demand that it be remedied and state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which is, or with the giving of notice or the lapse of time or both
would become, an Event of Default, its status and what action the Company is
taking or proposes to take with respect thereto.
SECTION 6.02 Acceleration. If an Event of Default (other than an Event of
Default specified in Section 6.01(g) or (h) with respect to the Parent or the
Company) occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities, by notice to the Company, may
declare the principal of and accrued but unpaid interest on all the Securities
to be due and payable. Upon such a declaration, such principal and interest will
be due and payable immediately. If an Event of Default specified in Section
6.01(g) or (h) with respect to the Parent or the Company occurs, the principal
of and interest on all the Securities shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holders. The Holders of a majority in principal amount of the outstanding
Securities by notice to the Trustee may rescind any such acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 6.03 Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of 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. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
SECTION 6.04 Waiver of Past Defaults. The Holders of a majority in
principal amount of the Securities by notice to the Trustee may waive an
existing Default and its consequences except (a) a Default in the payment of the
principal of or interest on a Security, (b) a Default arising from the failure
to redeem or purchase any Security when required pursuant to the terms of this
Indenture or (c) a Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Holder affected. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.05 Control by Majority. The Holders of a majority in principal
amount of the Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section 7.01,
that the Trustee determines is unduly prejudicial to the rights of other Holders
or would involve the Trustee in personal liability; provided, however, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction. Prior to taking any action hereunder, the
Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such
action.
SECTION 6.06 Limitation on Suits. (a) Except to enforce the right to
receive payment of principal, premium (if any) or interest when due, no Holder
may pursue any remedy with respect to this Indenture or the Securities unless:
(i) the Holder gives to the Trustee written notice stating that
an Event of Default is continuing;
(ii) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee security or
indemnity satisfactory to it in its reasonable discretion against any
loss, liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity;
and
(v) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 60-day period.
(b) A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07 Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of and liquidated damages and interest on the Securities held by such
Holder, on or after the respective due dates expressed or provided for in the
Securities, 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.
SECTION 6.08 Collection Suit by Trustee. If an Event of Default specified
in Section 6.01 (a) or (b) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Securities for the whole amount then due and owing
(together with interest on overdue principal and (to the extent lawful) on any
unpaid interest at the rate provided for in the Securities) and the amounts
provided for in Section 7.07.
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 and the Holders allowed in any
judicial proceedings relative to the Company, any Subsidiary or Note Guarantor,
their creditors or their property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
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 it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10 Priorities. If the Trustee collects any money or property
pursuant to this Article 6, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, and any liquidated damages without
preference or priority of any kind, according to the amounts due and
payable on the Securities for principal, interest and any liquidated
damages, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section. At least 15 days before such record date, the
Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and the amount to be paid.
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 in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion 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 does not apply to a suit by
the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in principal amount of the Securities.
SECTION 6.12 Waiver of Stay or Extension Laws. Neither the Company nor any
Note Guarantor (to the extent it may lawfully do so) shall at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company and each Note Guarantor (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 7
Trustee
SECTION 7.01 Duties of Trustee. (a) If an Event of Default has occurred and
is continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and 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
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur 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 to
believe that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) 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 Section and to the provisions of the TIA.
SECTION 7.02 Rights of Trustee. (a) In the absence of bad faith, 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 the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' 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 the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization and
protection from liability in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) 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, consent, order, approval,
bond, debenture, note or other paper or document unless requested in
writing to do so by the Holders of not less than a majority in principal
amount of the Securities at the time outstanding, 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 Company, personally or by agent or
attorney.
(g) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder and each agent, custodian and other Person employed to
act hereunder.
(h) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture.
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 Company or its Affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent or Registrar may do the same with
like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer. The Trustee shall not be responsible for
and makes no representation as to the validity or adequacy of this Indenture,
any Note Guarantee or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement of the Company or any Note Guarantor in this
Indenture or in any document issued in connection with the sale of the
Securities or in the Securities other than the Trustee's certificate of
authentication. Delivery of reports, information and documents to the Trustee
under Article 4 is for informational purposes only and the Trustee's receipt of
the foregoing shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely conclusively on Officers' Certificates). Except with
respect to Sections 4.01, 4.02 and 4.09, the Trustee shall have no duty to
inquire as to the performance of the Company with respect to the covenants
contained in Article Four. The Trustee shall not be charged with knowledge of
any Default or Event of Default under Section 6.01(c), (d), (e), (f), (i) or (j)
or of the identity of any Significant Subsidiary unless either (a) a Trust
Officer shall have actual knowledge thereof or (b) the Trustee shall have
received notice thereof in accordance with Section 11.02 hereof from the
Company, any Note Guarantor or any Holder.
SECTION 7.05 Notice of Defaults. If a Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to each Holder notice of
the Default within the earlier of 90 days after it occurs or 30 days after it is
known to a Trust Officer. Except in the case of a Default in payment of
principal of or interest on any Security (including payments pursuant to the
mandatory redemption provisions of such Security), the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of Holders.
SECTION 7.06 Reports by Trustee to Holders. As promptly as practicable
after each May 15 beginning with the May 15 following the Issue Date, and in any
event prior to July 15 in each year, the Trustee shall mail to each Holder a
brief report dated as of such May 15 that complies with Section 313(a) of the
TIA if and to the extent required thereby. The Trustee shall also comply with
Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Holders shall be filed
with the SEC and each stock exchange (if any) on which the Securities are
listed. The Company agrees to promptly notify the Trustee whenever the
Securities become listed on any stock exchange and of any delisting thereof.
SECTION 7.07 Compensation and Indemnity. The Company shall pay to the
Trustee from time to time such compensation as the Company and the Trustee shall
from time to time agree in writing for its services. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Company and each Note
Guarantor, jointly and severally, shall indemnify the Trustee against any and
all loss, liability, damage, claim or expense (including reasonable attorneys'
fees and expenses) incurred by or in connection with the acceptance or
administration of this trust and the performance of its duties hereunder. The
Trustee shall notify the Company of any claim for which it may seek indemnity
promptly upon obtaining actual knowledge thereof; provided, however, that any
failure to so notify the Company shall not relieve the Company or any Note
Guarantor of its indemnity obligations hereunder. The Company shall defend the
claim and the indemnified party shall provide reasonable cooperation at the
Company's expense in the defense. Such indemnified parties may have separate
counsel and the Company and the Note Guarantors, as applicable, shall pay the
fees and expenses of such counsel; provided, however, that the Company shall not
be required to pay such fees and expenses if it assumes such indemnified
parties' defense and, in such indemnified parties' reasonable judgment, there is
no conflict of interest between the Company and the Note Guarantors, as
applicable, and such parties in connection with such defense. The Company need
not reimburse any expense or indemnify against any loss, liability or expense
incurred by an indemnified party through such party's own willful misconduct,
negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of and interest and liquidated damages, if any, on particular
Securities.
The Company's payment obligations pursuant to this Section shall survive
the satisfaction or discharge of this Indenture, any rejection or termination of
this Indenture under any bankruptcy law or the resignation or removal of the
Trustee. Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses after the occurrence of a
Default specified in Section 6.01(g) or (h) with respect to the Company, the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION 7.08 Replacement of Trustee. (a) The Trustee may resign at any time
by so notifying the Company. The Holders of a majority in principal amount of
the Securities may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such
Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee. (c) A successor Trustee shall deliver
a written acceptance of its appointment to the retiring Trustee and to the
Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. The successor
Trustee shall mail a notice of its succession to Holders. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.07.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Securities may, at the expense of
the Company, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, unless the
Trustee's duty to resign is stayed as provided in Section 310(b) of the
TIA, any Holder who has been a bona fide holder of a Security for at least
six months may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor to the Trustee; and in
all such cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate of the
Trustee shall have.
SECTION 7. 10 Eligibility; Disqualification. The Trustee shall at all times
satisfy the requirements of Section 310(a) of the TIA. The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with
Section 310(b) of the TIA, subject to its right to apply for a stay of its duty
to resign under the penultimate paragraph of Section 310(b) of the TIA;
provided, however, that there shall be excluded from the operation of Section
310(b)(1) of the TIA any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in Section
310(b)(1) of the TIA are met.
SECTION 7.11 Preferential Collection of Claims Against Company. The Trustee
shall comply with Section 311(a) of the TIA, excluding any creditor relationship
listed in Section 311(b) of the TIA. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the TIA to the extent indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01 Discharge of Liability on Securities; Defeasance. (a) When (i)
all outstanding Securities (other than Securities replaced or paid pursuant to
Section 2.08) have been cancelled or delivered to the Trustee for cancellation
or (ii) all outstanding Securities have become due and payable, whether at
maturity or as a result of the mailing of a notice of redemption pursuant to
Article 3 hereof, and the Company irrevocably deposits with the Trustee funds in
an amount sufficient, or U.S. Government Obligations, the principal of and
interest on which will be sufficient, or a combination thereof sufficient, in
the written opinion of a nationally recognized firm of independent public
accountants delivered to the Trustee (which delivery shall only be required if
U.S. Government Obligations have been so deposited), to pay the principal of and
interest and liquidated damages, if any, on the outstanding Securities when due
at maturity or upon redemption of such Securities, including interest thereon to
maturity or such redemption date (other than Securities replaced or paid
pursuant to Section 2.08) and liquidated damages, if any, and if in either case
the Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 8.01(c), cease to be of further effect. The
Trustee shall acknowledge satisfaction and discharge of this Indenture on demand
of the Company accompanied by an Officers' Certificate and an Opinion of Counsel
and at the cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Parent and the Company
at any time may terminate (i) all of their obligations under the Securities
and this Indenture ("legal defeasance option") or (ii) their obligations
under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13,
and 4.14 and the operation of Sections 5.01(a)(iii), 5.01(a)(iv), 6.01 (d),
6.01 (f), 6.01 (g) (with respect to Significant Subsidiaries of the Parent
only), 6.01(h) (with respect to Significant Subsidiaries of the Parent
only) and 6.01(i) ("covenant defeasance option"). The Parent and the
Company may exercise their legal defeasance option notwithstanding their
prior exercise of their covenant defeasance option. In the event that the
Parent and the Company terminate all of their obligations under the
Securities and this Indenture by exercising their legal defeasance option,
the obligations under the Note Guarantees shall each be terminated
simultaneously with the termination of such obligations.
If the Parent and the Company exercise their legal defeasance option,
payment of the Securities may not be accelerated because of an Event of
Default. If the Parent and the Company exercise their covenant defeasance
option, payment of the Securities may not be accelerated because of an
Event of Default specified in Section 6.01(d), 6.01(f), 6.01(g) (with
respect to Significant Subsidiaries only), 6.01(h) (with respect only to
Significant Subsidiaries) or 6.01(i) or because of the failure of the
Company to comply with clauses (iii) and (iv) of Section 5.01(a).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of
those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07 and 7.08
and in this Article 8 shall survive until the Securities have been paid in
full. Thereafter, the Company's obligations in Sections 7.07, 8.05 and 8.06
shall survive.
SECTION 8.02 Conditions to Defeasance. (a) The Parent and the Company may
exercise their legal defeasance option or their covenant defeasance option only
if:
(i) the Parent and the Company irrevocably deposit in trust with
the Trustee money in an amount sufficient, or U.S. Government
Obligations, the principal of and interest on which will be
sufficient, or a combination thereof sufficient, to pay the principal
of, and premium (if any), interest and liquidated damages (if any) on,
the Securities when due at maturity or redemption, as the case may be,
including interest thereon to maturity or such redemption date;
(ii) the Parent and the Company deliver to the Trustee a
certificate from a nationally recognized firm of independent
accountants expressing their opinion that the payments of principal
and interest when due and without reinvestment on the deposited U.S.
Government Obligations plus any deposited money without investment
will provide cash at such times and in such amounts as will be
sufficient to pay principal, premium, if any, interest and liquidated
damages, if any, when due on all the Securities to maturity or
redemption, as the case may be;
(iii) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(g) or (h) with
respect to the Company occurs which is continuing at the end of the
period;
(iv) the deposit does not constitute a default under any other
agreement binding on the Company;
(v) the Parent and the Company deliver to the Trustee an Opinion
of Counsel to the effect that the trust resulting from the deposit
does not constitute, or is qualified as, a regulated investment
company under the Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the Parent and
the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (1) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (2) since the
date of this Indenture there has been a change in the applicable
federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders will
not recognize income, gain or loss for federal income tax purposes as
a result of such deposit and defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit and defeasance had
not occurred;
(vii) in the case of the covenant defeasance option, the Parent
and the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders will not recognize income, gain
or loss for federal income tax purposes as a result of such deposit
and defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred; and
(viii) the Parent and the Company deliver to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the Securities
as contemplated by this Article 8 have been complied with.
(b) Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future
date in accordance with Article 3.
SECTION 8.03 Application of Trust Money. The Trustee shall hold in trust
money or U.S. Government Obligations deposited with it pursuant to this Article
8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest and liquidated damages, if any, on the
Securities.
SECTION 8.04 Repayment to Company. The Trustee and the Paying Agent shall
promptly turn over to the Company upon request any money or U.S. Government
Obligations held by it as provided in this Article which, in the written opinion
of a nationally recognized firm of independent public accountants delivered to
the Trustee (which delivery shall only be required if U.S. Government
Obligations have been so deposited), are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent discharge or
defeasance in accordance with this Article.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal, interest or liquidated damages that remains
unclaimed for two years, and, thereafter, Holders entitled to the money must
look to the Company for payment as general creditors, and the Trustee and the
Paying Agent shall have no further liability with respect to such monies.
SECTION 8.05 Indemnity for Government Obligations. The Company shall pay
and shall indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against deposited U.S. Government Obligations or the principal and
interest received on such U.S. Government Obligations.
SECTION 8.06 Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with this Article 8
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 Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article 8 until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with this Article 8; provided, however, that, if the Company has made any
payment of principal of or interest or liquidated damages on any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
Amendments
SECTION 9.01 Without Consent of Holders. (a) The Company, the Note
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to or consent of any Holder:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Article 5;
(iii) to provide for uncertificated Securities in addition to or
in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes
of Section 163(f) of the Code, or in a manner such that the
uncertificated Securities are described in Section 163(f)(2)(B) of the
Code;
(iv) to add additional Guarantees with respect to the Securities;
(v) to secure the Securities;
(vi) to add to the covenants of the Parent and the Restricted
Subsidiaries for the benefit of the Holders or to surrender any right
or power conferred upon the Parent or the Company;
(vii) to make any change that does not adversely affect the
rights of any Holder;
(viii) to provide for the issuance of the Exchange Securities,
Private Exchange Securities or Additional Securities, which shall have
terms substantially identical in all material respects to the Original
Securities (except that the transfer restrictions contained in the
Original Securities shall be modified or eliminated, as appropriate)
and which shall be treated, together with any outstanding Original
Securities, as a single issue of securities; or
(ix) to comply with any requirement of the SEC in connection with
the qualification of the Indenture under the TIA.
(b) After an amendment under this Section 9.01 becomes effective, the
Company shall mail to Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein,
shall not impair or affect the validity of an amendment under this Section
9.01.
SECTION 9.02 With Consent of Holders. (a) The Company, the Note Guarantors
and the Trustee may amend this Indenture or the Securities without notice to any
Holder but with the written consent of the Holders of at least a majority in
principal amount of the Securities then outstanding (including consents obtained
in connection with a tender offer or exchange for the Securities). However,
without the consent of each Holder affected, an amendment may not:
(i) reduce the amount of Securities whose Holders must consent to
an amendment;
(ii) reduce the rate of or extend the time for payment of
interest or any liquidated damages on any Security;
(iii) reduce the principal of or extend the Stated Maturity of
any Security;
(iv) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may be redeemed;
(v) make any Security payable in money other than that stated in
the Security;
(vi) make any change in Section 6.04 or 6.07 or this sentence of
Section 9.02; or
(vii) modify the Note Guarantees in any manner adverse to the
Holders.
(b) It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent approves the substance thereof.
(c) After an amendment under this Section 9.02 becomes effective, the
Company shall mail to Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein,
shall not impair or affect the validity of an amendment under this Section
9.02.
SECTION 9.03 Compliance with Trust Indenture Act. Every amendment to this
Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents and Waivers. (a) A consent
to an amendment or a waiver by a Holder of a Security shall bind the Holder and
every subsequent Holder of that Security or any portion of the Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent or waiver is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Security
or such portion of the Security if the Trustee receives the notice of revocation
before the date on which the Trustee receives an Officers' Certificate from the
Company certifying that the requisite number of consents have been received.
After an amendment or waiver becomes effective, it shall bind every Holder. An
amendment or waiver becomes effective upon the (i) receipt by the Company or the
Trustee of the requisite number of consents, (ii) satisfaction of conditions to
effectiveness as set forth in this Indenture and any indenture supplemental
hereto containing such amendment or waiver and (iii) execution of such amendment
or waiver (or supplemental indenture) by the Company and the Trustee.
(b) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to give their consent
or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed then,
notwithstanding the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any
consent previously given or to take any such action, whether or not such
Persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 120 days after such record date.
SECTION 9.05 Notation on or Exchange of Securities. If an amendment changes
the terms of a Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Security regarding the changed terms and return it to the Holder. Alternatively,
if the Company or the Trustee so determines, in exchange for the Security the
Company shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms. Failure to make the appropriate notation or to issue
a new Security shall not affect the validity of such amendment.
SECTION 9.06 Trustee to Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture and that such amendment
is the legal, valid and binding obligation of the Company and the Note
Guarantors enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof (including Section
9.03).
SECTION 9.07 Payment for Consent. Neither the Company nor any Affiliate of
the Company shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 10
Note Guarantees
SECTION 10.01 Note Guarantees. (a) Each Note Guarantor hereby jointly and
severally irrevocably and unconditionally guarantees, as a primary obligor and
not merely as a surety, to each Holder and to the Trustee and its successors and
assigns (i) the full and punctual payment when due, whether at Stated Maturity,
by acceleration, by redemption or otherwise, of all obligations of the Company
under this Indenture (including obligations to the Trustee) and the Securities,
whether for payment of principal of, interest on or liquidated damages, if any,
in respect of the Securities and all other monetary obligations of the Company
under this Indenture and the Securities, and (11) the full and punctual
performance within applicable grace periods of all other obligations of the
Company, whether for fees, expenses, indemnification or otherwise, under this
Indenture and the Securities (all the foregoing being hereinafter collectively
called the "Guaranteed Obligations"). Each Note Guarantor further agrees that
the Guaranteed Obligations may be extended or renewed, in whole or in part,
without notice or further assent from each such Note Guarantor, and that each
such Note Guarantor shall remain bound under this Article 10 notwithstanding any
extension or renewal of any Guaranteed Obligation.
(b) Each Note Guarantor waives presentation to, demand of payment from
and protest to the Company of any of the Guaranteed Obligations and also
waives notice of protest for nonpayment. Each Note Guarantor waives notice
of any default under the Securities or the Guaranteed Obligations. The
obligations of each Note Guarantor hereunder shall not be affected by: (i)
the failure of any Holder or the Trustee to assert any claim or demand or
to enforce any right or remedy against the Company or any other Person
under this Indenture, the Securities or any other agreement or otherwise;
(ii) any extension or renewal thereof; (iii) any rescission, waiver,
amendment or modification of any of the terms or provisions of this
Indenture, the Securities or any other agreement; (iv) the release of any
security held by any Holder or the Trustee for the Guaranteed Obligations
or any of them; (v) the failure of any Holder or Trustee to exercise any
right or remedy against any other guarantor of the Guaranteed Obligations;
or (vi) any change in the ownership of such Note Guarantor, except as
provided in Section 10.02(b).
(c) Each Note Guarantor hereby waives any right to which it may be
entitled to have its obligations hereunder divided among the Note
Guarantors, such that such Note Guarantor's obligations would be less than
the full amount claimed. Each Note Guarantor hereby waives any right to
which it may be entitled to have the assets of the Company first be used
and depleted as payment of the Company's or such Note Guarantor's
obligations hereunder prior to any amounts being claimed from or paid by
such Note Guarantor hereunder. Each Note Guarantor hereby waives any right
to which it may be entitled to require that the Company be sued prior to an
action being initiated against such Note Guarantor.
(d) Each Note Guarantor further agrees that its Note Guarantee herein
constitutes a guarantee of payment, performance and compliance when due
(and not a guarantee of collection) and waives any right to require that
any resort be had by any Holder or the Trustee to any security held for
payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01(b), 10.02 and
10.06, the obligations of each Note Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense of setoff,
counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Guaranteed Obligations or
otherwise. Without limiting the generality of the foregoing, the
obligations of each Note Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the Trustee
to assert any claim or demand or to enforce any remedy under this
Indenture, the Securities or any other agreement, by any waiver or
modification thereof, by any default, failure or delay, willful or
otherwise, in the performance of the obligations, or by any other act or
thing or omission or delay to do any other act or thing which may or might
in any manner or to any extent vary the risk of any Note Guarantor or would
otherwise operate as a discharge of any Note Guarantor as a matter of law
or equity.
(f) Each Note Guarantor agrees that its Note Guarantee shall remain in
full force and effect until payment in full of all the Guaranteed
Obligations. Each Note Guarantor further agrees that its Note Guarantee
herein shall continue to be effective or be reinstated, as the case may be,
if at any time payment, or any part thereof, of principal of or interest or
liquidated damages, if any, on any Guaranteed Obligation is rescinded or
must otherwise be restored by any Holder or the Trustee upon the bankruptcy
or reorganization of the Company or otherwise.
(g) In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Note Guarantor by virtue hereof, upon the failure of the Company to pay the
principal of or interest or liquidated damages, if any, on any Guaranteed
Obligation when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, or to perform or comply with any
other Guaranteed Obligation, each Note Guarantor hereby promises to and
shall, upon receipt of written demand by the Trustee, forthwith pay, or
cause to be paid, in cash, to the Holders or the Trustee an amount equal to
the sum of (i) the unpaid principal amount of such Guaranteed Obligations,
(ii) accrued and unpaid interest on such Guaranteed Obligations (but only
to the extent not prohibited by law) and (iii) all other monetary
obligations of the Company to the Holders and the Trustee.
(h) Each Note Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any
Guaranteed Obligations guaranteed hereby until payment in full of all
Guaranteed Obligations. Each Note Guarantor further agrees that, as between
it, on the one hand, and the Holders and the Trustee, on the other hand,
(i) the maturity of the Guaranteed Obligations guaranteed hereby may be
accelerated as provided in Article 6 for the purposes of any Note Guarantee
herein, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Guaranteed Obligations
guaranteed hereby, and (ii) in the event of any declaration of acceleration
of such Guaranteed Obligations as provided in Article 6, such Guaranteed
Obligations (whether or not due and payable) shall forthwith become due and
payable by such Note Guarantor for the purposes of this Section 10.01.
(i) Each Note Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees and expenses) incurred by
the Trustee or any Holder in enforcing any rights under this Section 10.01.
(j) Upon request of the Trustee, each Note Guarantor shall execute and
deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of
this Indenture.
SECTION 10.02 Limitation on Liability. (a) Any term or provision of this
Indenture to the contrary notwithstanding, the maximum aggregate amount of the
Guaranteed Obligations guaranteed hereunder by any Note Guarantor shall not
exceed the maximum amount that can be hereby guaranteed without rendering this
Indenture, as it relates to such Note Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
(b) A Note Guarantee as to any Note Guarantor shall terminate and be
of no further force or effect and such Note Guarantor shall be deemed to be
released from all obligations under this Article 10 upon (i) any release
and termination of the Guarantee by such Note Guarantor of the Bank
Indebtedness (other than by reason of repayment and satisfaction of all of
the Bank Indebtedness), (ii) the merger or consolidation of such Note
Guarantor with or into any Person other than the Parent or a Subsidiary or
Affiliate of the Parent where such Note Guarantor is not the surviving
entity of such consolidation or merger or (iii) the sale by the Parent or
the Company or any Subsidiary of the Company (or any pledgee of the
Company) of the Capital Stock of such Note Guarantor where, after such
sale, such Note Guarantor is no longer a Subsidiary of the Parent;
provided, however, that each such merger, consolidation or sale (or, in the
case of a sale by such a pledgee, the disposition of the proceeds of such
sale) shall comply with Section 4.06 and Section 5.01(b). At the request of
the Company, the Trustee shall execute and deliver an appropriate
instrument evidencing such release (in the form provided by the Company).
SECTION 10.03 Successors and Assigns. This Article 10 shall be binding upon
each Note Guarantor and its successors and assigns and shall inure to the
benefit of the successors and assigns of the Trustee and the Holders and, in the
event of any transfer or assignment of rights by any Holder or the Trustee, the
rights and privileges conferred upon that party in this Indenture and in the
Securities shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this Indenture.
SECTION 10.04 No Waiver. Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article 10 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 10 at law,
in equity, by statute or otherwise.
SECTION 10.05 Modification. No modification, amendment or waiver of any
provision of this Article 10, nor the consent to any departure by any Note
Guarantor therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on any Note Guarantor in any case shall entitle such Note
Guarantor to any other or further notice or demand in the same, similar or other
circumstances.
SECTION 10.06 Execution of Supplemental Indenture for Future Note
Guarantors. Each Subsidiary which is required to become a Note Guarantor
pursuant to Section 4.11 shall promptly execute and deliver to the Trustee a
supplemental indenture in the form of Exhibit C hereto pursuant to which such
Subsidiary shall become a Note Guarantor under this Article 10 and shall
guarantee the Guaranteed Obligations. Concurrently with the execution and
delivery of such supplemental indenture, the Company shall deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Note Guarantee of such Note Guarantor
is a legal, valid and binding obligation of such Note Guarantor, enforceable
against such Note Guarantor in accordance with its terms, and/or to such other
effect as the Trustee may reasonably request.
SECTION 10.07 Non-Impairment. The failure to endorse a Note Guarantee on
any Security shall not affect or impair the validity thereof.
ARTICLE 11
Miscellaneous
SECTION 11.01 Trust Indenture Act Controls. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of, Sections 310 to 318 of the TIA, inclusive, such
imposed duties or incorporated provision shall control.
SECTION 11.02 Notices. Any notice or communication shall be in writing and
delivered in person or mailed by first-class mail addressed as follows:
if to the Company:
The Kansas City Southern Railway Company
427 West 12th Street
Kansas City, Missouri 64105
Attention of Michael R. Haverty, President
if to the Trustee:
U.S. Bank National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attention of Corporate Trust Administration
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed, first-class
mail, to the Holder at the Holder's address as it appears on the registration
books of the Registrar and shall be sufficiently given if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Holder or any defect therein
shall not affect the sufficiency thereof with respect to other Holders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.03 Communication by Holders with Other Holders. Holders may
communicate pursuant to Section 312(b) of the TIA with other Holders with
respect to their rights under this Indenture or the Securities. The Company, the
Trustee, the Registrar and anyone else shall have the protection of Section
312(c) of the TIA.
SECTION 11.04 Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form reasonably satisfactory to the
Trustee 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 in form reasonably satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 11.05 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture (other than pursuant to Section 4.09) shall
include:
(a) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such individual, 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 such
individual, such covenant or condition has been complied with.
SECTION 11.06 When Securities Disregarded. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Parent, the Company or any
Note Guarantor or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Parent, the Company or
any Note Guarantor shall be disregarded and deemed not to be outstanding, except
that, for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities which (i) a
Trust Officer of the Trustee actually knows are so owned or (ii) as to which the
Trustee shall have received notice of ownership in accordance with Section 11.02
hereof shall be so disregarded. Subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
SECTION 11.07 Rules by Trustee, Paying Agent and Registrar. The Trustee may
make reasonable rules for action by, or a meeting of, Holders. The Registrar and
the Paying Agent may make reasonable rules for their functions.
SECTION 11.08 Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday or
any other day on which banking institutions are not required by law or
regulation to be open in the State of New York. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
SECTION 11.09 GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 11.10 No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Parent, the Company or any of the Note Guarantors
shall not have any liability for any obligations of the Parent, the Company or
any of the Note Guarantors under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Securities.
SECTION 11.11 Successors. All agreements of the Company and each Note
Guarantor in this Indenture and the Securities shall bind their successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.12 Multiple 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. One signed copy is enough to prove this
Indenture.
SECTION 11.13 Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
THE KANSAS CITY SOUTHERN RAILWAY
COMPANY
By /s/ Paul J. Weyandt
--------------------------------------
Name: Paul J. Weyandt
Title: Vice President and Treasurer
KANSAS CITY SOUTHERN
By /s/ Paul J. Weyandt
--------------------------------------
Name: Paul J. Weyandt
Title: Vice President and Treasurer
GATEWAY EASTERN RAILWAY COMPANY
By /s/ Paul J. Weyandt
--------------------------------------
Name: Paul J. Weyandt
Title: Vice President and Treasurer
MID-SOUTH MICROWAVE, INC.
By /s/ Robert H. Berry
--------------------------------------
Name: Robert H. Berry
Title: Vice President and Treasurer
PABTEX GP, LLC
By /s/ Paul J. Weyandt
--------------------------------------
Name: Paul J. Weyandt
Title: Authorized Representative
PABTEX, L.P.
By /s/ Paul J. Weyandt
--------------------------------------
Name: Paul J. Weyandt
Title: Authorized Representative
RICE-CARDEN CORPORATION
By /s/ Robert H. Berry
--------------------------------------
Name: Robert H. Berry
Title: Vice President and Treasurer
SIS BULK HOLDING, INC.
By /s/ Robert H. Berry
--------------------------------------
Name: Robert H. Berry
Title: Vice President and Treasurer
SOUTHERN DEVELOPMENT COMPANY
By /s/ Robert H. Berry
--------------------------------------
Name: Robert H. Berry
Title: Vice President and Treasurer
SOUTHERN INDUSTRIAL SERVICES, INC.
By /s/ Robert H. Berry
--------------------------------------
Name: Robert H. Berry
Title: Vice President and Treasurer
TRANS-SERVE, INC.
By /s/ Robert H. Berry
--------------------------------------
Name: Robert H. Berry
Title: Vice President and Treasurer
U.S. BANK NATIONAL ASSOCIATION, as trustee
By /s/ Richard H. Prokosch
--------------------------------------
Name: Richard H. Prokosch
Title: Vice President
APPENDIX A
PROVISIONS RELATING TO ORIGINAL SECURITIES, ADDITIONAL SECURITIES,
PRIVATE EXCHANGE SECURITIES AND EXCHANGE SECURITIES
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Regulation S Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Global Security, Euroclear and
Clearstream, in each case to the extent applicable to such transaction and as in
effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, or any successor
securities clearing agency.
"Definitive Security" means a certificated Initial Security, Private
Exchange Security or Exchange Security (bearing the Restricted Securities Legend
if the transfer of such Security is restricted by applicable law) that does not
include the Global Securities Legend.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors.
"Euroclear" means the Euroclear Clearance System or any successor
securities clearing agency.
"Global Securities Legend" means the legend set forth under that caption in
Exhibit A to this Indenture.
"IAI" means an institutional "accredited investor" as described in Rule
501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means Morgan Stanley & Co. Incorporated, J.P. Morgan
Securities Inc., Deutsche Bank Securities Inc., Banc One Capital Markets, Inc.
and Scotia Capital (USA) Inc.
"Private Exchange" means an offer by the Company, pursuant to the
Registration Agreement, to issue and deliver to certain purchasers, in exchange
for the Initial Securities held by such purchasers as part of their initial
distribution, a like aggregate principal amount of Private Exchange Securities.
"Private Exchange Securities" means the Securities of the Company issued in
exchange for Initial Securities pursuant to this Indenture in connection with
the Private Exchange pursuant to the Registration Agreement.
"Purchase Agreement" means (a) the Purchase Agreement dated June 5, 2002
among the Company, the Note Guarantors and the Initial Purchasers and (b) any
other similar Purchase Agreement relating to Additional Securities.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registered Exchange Offer" means the offer by the Company, pursuant to the
Registration Agreement, to certain Holders of Initial Securities, to issue and
deliver to such Holders, in exchange for their Initial Securities, a like
aggregate principal amount of Exchange Securities registered under the
Securities Act.
"Registration Agreement" means (a) the Registration Rights Agreement dated
June 5, 2002 among the Company, the Note Guarantors and the Initial Purchasers
and (b) any other similar Registration Rights Agreement relating to Additional
Securities.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Securities" means all Initial Securities offered and sold
outside the United States in reliance on Regulation S.
"Restricted Period", with respect to any Securities, means the period of 40
consecutive days beginning on and including the later of (a) the day on which
such Securities are first offered to persons other than distributors (as defined
in Regulation S under the Securities Act) in reliance on Regulation S, notice of
which day shall be promptly given by the Company to the Trustee, and (b) the
Issue Date with respect to such Securities.
"Restricted Securities Legend" means the legend set forth in Section
2.3(e)(i) herein.
"Rule 501 " means Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means all Initial Securities offered and sold to
QIBs in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a Global
Security (as appointed by the Depositary) or any successor person thereto, who
shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement filed by the
Company in connection with the offer and sale of Initial Securities pursuant to
the Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities and any other
Securities that bear or are required to bear the Restricted Securities Legend.
1.2 Other Definitions
Term: Defined in Section:
"Agent Members" ........................................ 2.1(c)
"IAI Global Security" .................................. 2.1(b)
"Global Security" ...................................... 2.1(b)
"Regulation S Global Security" ......................... 2.1(b)
"Rule 144A Global Security" ............................ 2.1(b)
2. The Securities
2.1 Form and Dating
(a) The Initial Securities. The Initial Securities issued on the date
hereof will be (i) offered and sold by the Company pursuant to the Purchase
Agreement and (ii) resold, initially only to (1) QIBs in reliance on Rule
144A and (2) Persons other than U.S. Persons (as defined in Regulation S)
in reliance on Regulation S. Such Initial Securities may thereafter be
transferred to, among others, QIBs, purchasers in reliance on Regulation S
and, except as set forth below, IAIs in accordance with Rule 501.
Additional Securities offered after the date hereof may be offered and sold
by the Company from time to time pursuant to one or more Purchase
Agreements in accordance with applicable law.
(b) Global Securities. Rule 144A Securities shall be issued initially
in the form of one or more permanent global Securities in definitive, fully
registered form (collectively, the "Rule 144A Global Security") and
Regulation S Securities shall be issued initially in the form of one or
more global Securities (collectively, the "Regulation S Global Security"),
in each case without interest coupons and bearing the Global Securities
Legend and Restricted Securities Legend, which shall be deposited on behalf
of the purchasers of the Securities represented thereby with the Securities
Custodian, and registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Company and authenticated by the Trustee
as provided in this Indenture. One or more global securities in definitive,
fully registered form without interest coupons and bearing the Global
Securities Legend and the Restricted Securities Legend (collectively, the
"IAI Global Security") shall also be issued on the Closing Date, deposited
with the Securities Custodian, and registered in the name of the Depositary
or a nominee of the Depositary, duly executed by the Company and
authenticated by the Trustee as provided in this Indenture to accommnodate
transfers of beneficial interests in the Securities to IAIs subsequent to
the initial distribution. Beneficial ownership interests in the Regulation
S Global Security shall not be exchangeable for interests in the Rule 144A
Global Security, the IAI Global Security or any other Security without a
Restricted Securities Legend until the expiration of the Restricted Period.
The Rule 144A Global Security, the IAI Global Security and the Regulation S
Global Security are each referred to herein as a "Global Security" and are
collectively referred to herein as "Global Securities", provided that the
term "Global Security" when used in Sections 2.1(b), 2.1(c), 2.3(g)(i),
2.3(h)(i) and 2.4 shall also include any Security in global form issued in
connection with a Registered Exchange Offer or Private Exchange. The
aggregate principal amount of the Global Securities may from time to time
be increased or decreased by adjustments made on the records of the Trustee
and the Depositary or its nominee and on the schedules thereto as
hereinafter provided.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply only to a
Global Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(c) and Section 2.2 and pursuant to an order of the Company
signed by two Officers, authenticate and deliver initially one or more
Global Securities that (i) shall be registered in the name of the
Depositary for such Global Security or Global Securities or the nominee of
such Depositary and (ii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions or held by the
Trustee as Securities Custodian.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary or by the Trustee as Securities
Custodian or under such Global Security, and the Depositary may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as
the absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Agent Members, the
operation of customary practices of such Depositary governing the exercise
of the rights of a holder of a beneficial interest in any Global Security.
(d) Definitive Securities. Except as provided in Section 2.3 or 2.4,
owners of beneficial interests in Global Securities will not be entitled to
receive physical delivery of certificated Securities.
[2.2 Authentication. The Trustee shall authenticate and make available
for delivery upon a written order of the Company signed by two Officers (a)
Original Securities for original issue on the date hereof in an aggregate
principal amount of $200,000,000, (b) subject to the terms of this
Indenture, Additional Securities in an unlimited amount and (c) the (i)
Exchange Securities for issue only in a Registered Exchange Offer and (ii)
Private Exchange Securities for issue only in the Private Exchange, in the
case of each of (i) and (ii) pursuant to the Registration Agreement and for
a like principal amount of Initial Securities exchanged pursuant thereto.
Such order shall specify the amount of the Securities to be authenticated,
the date on which the original issue of Securities is to be authenticated
and whether the Securities are to be Initial Securities, Exchange
Securities or Private Exchange Securities. The aggregate principal amount
of Securities outstanding at any time is unlimited under this Indenture.
Notwithstanding anything to the contrary in this Appendix or otherwise in
this Indenture, any issuance of Additional Securities after the Closing
Date shall be in a principal amount of at least $10,000,000, whether such
Additional Securities are of the same or a different series than the
Original Securities.
2.3 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Securities. When Definitive
Securities are presented to the Registrar with a request:
(i) to register the transfer of such Definitive Securities; or
(ii) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested
if its reasonable requirements for such transaction are met; provided,
however, that the Definitive Securities surrendered for transfer or
exchange:
(1) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar,
duly executed by the Holder thereof or his attorney duly authorized in
writing; and
(2) in the case of Transfer Restricted Securities, are accompanied by
the following additional information and documents, as applicable:
(A) if such Definitive Securities are being delivered to the
Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect (in
the form set forth on the reverse side of the Initial Security); or
(B) if such Definitive Securities are being transferred to the
Company, a certification to that effect (in the form set forth on the
reverse side of the Initial Security); or
(C) if such Definitive Securities are being transferred pursuant
to an exemption from registration in accordance with Rule 144 under
the Securities Act or in reliance upon another exemption from the
registration requirements of the Securities Act, (x) a certification
to that effect (in the form set forth on the reverse side of the
Initial Security) and (y) if the Company so requests, an opinion of
counsel or other evidence reasonably satisfactory to it as to the
compliance with the restrictions set forth in the legend set forth in
Section 2.3(e)(i).
(b) Restrictions on Transfer of a Definitive Security for a Beneficial
Interest in a Global Security. A Definitive Security may not be exchanged
for a beneficial interest in a Global Security except upon satisfaction of
the requirements set forth below. Upon receipt by the Trustee of a
Definitive Security, duly endorsed or accompanied by a written instrument
of transfer in form reasonably satisfactory to the Company and the
Registrar, together with:
(i) certification (in the form set forth on the reverse side of
the Initial Security) that such Definitive Security is being
transferred (1) to a QIB in accordance with Rule 144A, (2) to an IAI
that has furnished to the Trustee a signed letter substantially in the
form of Exhibit D or (3) outside the United States in an offshore
transaction within the meaning of Regulation S and in compliance with
Rule 904 under the Securities Act; and
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books
and records with respect to such Global Security to reflect an
increase in the aggregate principal amount of the Securities
represented by the Global Security, such instructions to contain
information regarding the Depositary account to be credited with such
increase,
then the Trustee shall cancel such Definitive Security and cause, or direct
the Securities Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Securities Custodian, the aggregate principal amount of Securities
represented by the Global Security to be increased by the aggregate
principal amount of the Definitive Security to be exchanged and shall
credit or cause to be credited to the account of the Person specified in
such instructions a beneficial interest in the Global Security equal to the
principal amount of the Definitive Security so cancelled. If no Global
Securities are then outstanding and the Global Security has not been
previously exchanged for certificated securities pursuant to Section 2.4,
the Company shall issue and the Trustee shall authenticate, upon written
order of the Company in the forrn of an Officers' Certificate, a new Global
Security in the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. (i) The transfer and
exchange of Global Securities or beneficial interests therein shall be
effected through the Depositary, in accordance with this Indenture
(including applicable restrictions on transfer set forth herein, if any)
and the procedures of the Depositary therefor. A transferor of a beneficial
interest in a Global Security shall deliver a written order given in
accordance with the Depositary's procedures containing information
regarding the participant account of the Depositary to be credited with a
beneficial interest in such Global Security or another Global Security and
such account shall be credited in accordance with such order with a
beneficial interest in the applicable Global Security and the account of
the Person making the transfer shall be debited by an amount equal to the
beneficial interest in the Global Security being transferred. Transfers by
an owner of a beneficial interest in the Rule 144A Global Security or the
IAI Global Security to a transferee who takes delivery of such interest
through the Regulation S Global Security, whether before or after the
expiration of the Restricted Period, shall be made only upon receipt by the
Trustee of a certification in the form provided on the reverse of the
Initial Securities from the transferor to the effect that such transfer is
being made in accordance with Regulation S or (if available) Rule 144 under
the Securities Act and that, if such transfer is being made prior to the
expiration of the Restricted Period, the interest transferred shall be held
immediately thereafter through Euroclear or Clearstream. In the case of a
transfer of a beneficial interest in either the Regulation S Global
Security or the Rule 144A Global Security for an interest in the IAI Global
Security, the transferee must furnish a signed letter substantially in the
form of Exhibit D to the Trustee.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another
Global Security, the Registrar shall cause to be reflected on its
books and records the date and an increase in the principal amount of
the Global Security to which such interest is being transferred in an
amount equal to the principal amount of the interest to be so
transferred, and the Registrar shall cause to be reflected on its
books and records the date and a corresponding decrease in the
principal amount of Global Security from which such interest is being
transferred.
(iii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global
Security may not be transferred as a whole except by the Depositary to
a 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.
(iv) In the event that a Global Security is exchanged for
Definitive Securities pursuant to Section 2.4 prior to the
consummation of the Registered Exchange Offer or the effectiveness of
the Shelf Registration Statement with respect to such Securities, such
Securities may be exchanged only in accordance with such procedures as
are substantially consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the reverse of
the Initial Securities intended to ensure that such transfers comply
with Rule 144A, Regulation S or such other applicable exemption from
registration under the Securities Act, as the case may be) and such
other procedures as may from time to time be adopted by the Company.
(d) Restrictions on Transfer of Regulation S Global Security. (i)
Prior to the expiration of the Restricted Period, interests in the
Regulation S Global Security may only be held through Euroclear or
Clearstream. During the Restricted Period, beneficial ownership interests
in the Regulation S Global Security may only be sold, pledged or
transferred through Euroclear or Clearstream in accordance with the
Applicable Procedures and only (1) to the Company, (2) so long as such
security is eligible for resale pursuant to Rule 144A, to a person whom the
selling holder reasonably believes is a QIB that purchases for its own
account or for the account of a QIB to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, (3) in
an offshore transaction in accordance with Regulation S, (4) pursuant to an
exemption from registration under the Securities Act provided by Rule 144
(if applicable) under the Securities Act, (5) to an IAI purchasing for its
own account, or for the account of such an IAI, in a minimum principal
amount of Securities of $250,000 or (6) pursuant to an effective
registration statement under the Securities Act, in each case in accordance
with any applicable securities laws of any state of the United States.
Prior to the expiration of the Restricted Period, transfers by an owner of
a beneficial interest in the Regulation S Global Security to a transferee
who takes delivery of such interest through the Rule 144A Global Security
or the IAI Global Security shall be made only in accordance with Applicable
Procedures and upon receipt by the Trustee of a written certification from
the transferor of the beneficial interest in the form provided on the
reverse of the Initial Security to the effect that such transfer is being
made to (1) a QIB within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A or (2) an IAI purchasing for its own account,
or for the account of such an IAI in a minimum principal amount of
Securities of $250,000. Such written certification shall no longer be
required after the expiration of the Restricted Period. In the case of a
transfer of a beneficial interest in the Regulation S Global Security for
an interest in the IAI Global Security, the transferee must furnish a
signed letter substantially in the form of Exhibit D to the Trustee.
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in the Regulation S Global Security shall be
transferable in accordance with applicable law and the other terms of
this Indenture.
(e) Legend. (i) Except as permitted by the following paragraphs (ii),
(iii) or (iv), each Security certificate evidencing the Global Securities
and the Definitive Securities (and all Securities issued in exchange
therefor or in substitution thereof) shall bear a legend in substantially
the following form (each defined term in the legend being defined as such
for purposes of the legend only):
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN
RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE
TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER
IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000,
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS
IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME
PERIOD REFERRED TO IN RULE 144(k) UNDER THE SECURITIES ACT AFTER THE
ORIGINAL ISSUANCE OF THE NOTES, THE HOLDER MUST TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING
RESTRICTION.
Each Definitive Security, whether or not an Exchange Note, shall also
bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR OF SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
FOREGOING RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted Security
that is a Definitive Security, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a Definitive
Security that does not bear the legends set forth above and rescind
any restriction on the transfer of such Transfer Restricted Security
if the Holder certifies in writing to the Registrar that its request
for such exchange was made in reliance on Rule 144 (such certification
to be in the form set forth on the reverse of the Initial Security).
(iii) After a transfer of any Original or Additional Securities
or Private Exchange Securities during the period of the effectiveness
of a Shelf Registration Statement with respect to such Original or
Additional Securities or Private Exchange Securities, as the case may
be, all requirements pertaining to the Restricted Securities Legend on
such Original or Additional Securities or such Private Exchange
Securities shall cease to apply and the requirements that any such
Original or Additional Securities or such Private Exchange Securities
be issued in global form shall continue to apply.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Original or Additional Securities pursuant to which
Holders of such Original or Additional Securities are offered Exchange
Securities in exchange for their Original or Additional Securities,
all requirements pertaining to Original or Additional Securities that
Original or Additional Securities be issued in global form shall
continue to apply, and Exchange Securities in global form without the
Restricted Securities Legend shall be available to Holders that
exchange such Original or Additional Securities in such Registered
Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect to
the Original or Additional Securities pursuant to which Holders of
such Original or Additional Securities are offered Private Exchange
Securities in exchange for their Original or Additional Securities,
all requirements pertaining to such Original or Additional Securities
that Original or Additional Securities be issued in global form shall
continue to apply, and Private Exchange Securities in global form with
the Restricted Securities Legend shall be available to Holders that
exchange such Original or Additional Securities in such Private
Exchange.
(vi) Upon a sale or transfer after the expiration of the
Restricted Period of any Initial Security acquired pursuant to
Regulation S, all requirements that such Initial Security bear the
Restricted. Securities Legend shall cease to apply and the
requirements requiring that any such Initial Security be issued in
global form shall continue to apply.
(vii) Any Additional Securities sold in a registered offering
shall not be required to bear the Restricted Securities Legend.
(f) Cancellation or Adjustment of Global Security. At such time as all
beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or cancelled,
such Global Security shall be returned by the Depositary to the Trustee for
cancellation or retained and cancelled by the Trustee. At any time prior to
such cancellation, if any beneficial interest in a Global Security is
exchanged for Definitive Securities, transferred in exchange for an
interest in another Global Security, redeemed, repurchased or cancelled,
the principal amount of Securities represented by such Global Security
shall be reduced and an adjustment shall be made on the books and records
of the Trustee (if it is then the Securities Custodian for such Global
Security) with respect to such Global Security, by the Trustee or the
Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of Securities.
(i) To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate, Definitive Securities and
Global Securities at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge
payable upon exchanges pursuant to Sections 2.07, 3.06, 4.06, 4.08 and
9.05 of this Indenture).
(iii) Prior to the due presentation for registration of transfer
of any Security, the Company, the Trustee, the Paying Agent or the
Registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and
for all other purposes whatsoever, whether or not such Security is
overdue, and none of the Company, the Trustee, the Paying Agent and
the Registrar shall be affected by notice to the contrary.
(iv) All Securities issued upon any transfer or exchange pursuant
to the tenns of this Indenture shall evidence the same debt and shall
be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee. (i) The Trustee shall have no
responsibility or obligation to any beneficial owner of a Global Security,
a member of, or a participant in, the Depositary or any other Person with
respect to the accuracy of the records of the Depositary or its nominee or
of any participant or member thereof, with respect to any ownership
interest in the Securities or with respect to the delivery to any
participant, member, beneficial owner or other Person (other than the
Depositary) of any notice (including any notice of redemption or
repurchase) or the payment of any amount, under or with respect to such
Securities. All notices and communications to be given to the Holders and
all payments to be made to Holders under the Securities shall be given or
made only to the registered Holders (which shall be the Depositary or its
nominee in the case of a Global Security). The rights of beneficial owners
of any Global Security shall be exercised only through the Depositary
subject to the applicable rules and procedures of the Depositary. The
Trustee may conclusively rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members, its
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with
respect to any transfer of any interest in any Security (including any
transfers between or among Depositary participants or members or
beneficial owners of any Global Security) other than to require
delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required
by, the terms of this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements
hereof.
2.4 Definitive Securities
(a) A Global Security deposited with the Depositary or with the
Trustee as Securities Custodian pursuant to Section 2.1 or issued in
connection with a Registered Exchange Offer or Private Exchange shall be
transferred to the beneficial owner thereof in the form of Definitive
Securities in an aggregate principal amount equal to the principal amount
of such Global Security, in exchange for such Global Security, only if such
transfer complies with Section 2.3 and (i) the Depositary notifies the
Company that it is unwilling or unable to continue as a Depositary for such
Global Security or if at any time the Depositary ceases to be a "clearing
agency" registered under the Exchange Act, and a successor depositary is
not appointed by the Company within 90 days of such notice or after the
Company becomes aware of such cessation, or (ii) an Event of Default has
occurred and is continuing or (iii) the Company, in its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
certificated Securities under this Indenture.
(b) Any Global Security that is transferable to the beneficial owners
thereof pursuant to this Section 2.4 shall be surrendered by the Depositary
to the Trustee, to be so transferred, in whole or from time to time in
part, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Security, an equal aggregate
principal amount of Definitive Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and
any integral multiple thereof and registered in such names as the
Depositary shall direct. Any certificated Initial Security in the form of a
Definitive Security delivered in exchange for an interest in the Global
Security shall, except as otherwise provided by Section 2.3(e), bear the
Restricted Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the registered Holder
of a Global Security may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of any of the events specified in
Section 2.4(a)(i), (ii) or (iii), the Company will promptly make available
to the Trustee a reasonable supply of Definitive Securities in fully
registered form without interest coupons.
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR")
OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES
THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUER OR ANY OF ITS
SUBSIDIARIES, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF NOTES OF LESS THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
ISSUER THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
Exh. A-1
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT
IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS NOTE WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE SECURITIES
ACT AFTER THE ORIGINAL ISSUANCE OF THE NOTES, THE HOLDER MUST TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR OR NON-U.S. PERSON, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE CONTAINS PROVISIONS REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTION.
Each Definitive Security, whether or not an Exchange Note, shall also bear
the following legend on the face thereof:
UNLESS TIUS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR OF SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
Exh. A-2
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE FOREGOING RESTRICTIONS.
Exh. A-3
No. $______________
7 1/2% Senior Note due 2009
CUSIP No._______
THE KANSAS CITY SOUTHERN RAILWAY COMPANY, a Missouri corporation, promises
to pay to Cede & Co., or registered assigns, the principal sum [of Dollars]
[listed on the Schedule of Increases or Decreases in Global Security attached
hereto](1) on June 15, 2009.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Security are set forth on the other side of
this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
The Kansas City Southern Railway Company,
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
__________
(1) Use the Schedule of Increases and Decreases language if Note is in global
form.
Exh. A-4
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
U. S. Bank National Association,
as Trustee, certifies
that this is one of the
Securities referred to
in the Indenture.
By:____________________________________
Authorized Signatory
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit A captioned ["TO BE ATTACHED TO
GLOBAL SECURITIES] - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL
SECURITY".
Exh. A-5
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
7 1/2% Senior Note due 2009
1. Interest
(a) THE KANSAS CITY SOUTHERN RAILWAY COMPANY, a Missouri corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The Company
shall pay interest semiannually on June 15 and December 15 of each year.
Interest on the Securities shall accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for, from June 12, 2002 until the principal hereof is due.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at the rate borne by
the Securities plus 1% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
(b) Liquidated Damages. The Holder of this Security is entitled to the
benefits of a Registration Rights Agreement, dated as of June 5, 2002, among the
Company, Kansas City Southern (the "Parent"), Gateway Eastern Railway Company,
Mid-South Microwave, Inc., PABTEX GP, LLC, PABTEX L.P., Rice-Carden Corporation,
SIS Bulk Holding, Inc., Southern Development Company, Southern Industrial
Services, Inc., and Trans-Serve, Inc. (collectively, including the Parent, the
"Note Guarantors") and the Initial Purchasers named therein (the "Registration
Agreement"). Capitalized terms used in this paragraph (b) but not defined herein
have the meanings assigned to them in the Registration Agreement. If an exchange
offer (the "Exchange Offer") registered under the Securities Act is not
consummated or a shelf registration statement (the "Shelf Registration
Statement") under the Securities Act with respect to resales of the Securities
is not declared effective by the Commission, on or before January 8, 2003 in
accordance with the terms of the Registration Agreement, the annual interest
rate borne by the Security shall be increased by 0.5% from the rate shown above
accruing from January 8, 2003, payable in cash semiannually, in arrears, on each
Interest Payment Date, commencing June 15, 2003 until the Exchange Offer is
consummated or the Shelf Registration Statement is declared effective. The
Holder of this Note is entitled to the benefits of such Registration Agreement.
All accrued liquidated damages shall be paid to Holders in the same manner
as interest payments on the Securities on semi-annual payment dates which
correspond to interest payment dates for the Securities. Following the cure of
all Registration Defaults, the accrual of liquidated damages shall cease. The
Trustee shall have no responsibility with respect to the determination of the
amount of any such liquidated damages. For purposes of the foregoing, "Transfer
Restricted Securities" means (i) each Initial Security until the date on which
such Initial Security has been exchanged for a freely transferable Exchange
Security in the Registered Exchange Offer, (ii) each Initial Security or Private
Exchange Security until the date on which such Initial Security or Private
Exchange Security has been effectively registered under the Securities Act and
disposed of in accordance with a Shelf Registration Statement or (iii) each
Initial Security or Private Exchange Security until the date on which such
Exh. A-6
Initial Security or Private Exchange Security is distributed to the public
pursuant to Rule 144 under the Securities Act or is saleable pursuant to Rule
144(k) under the Securities Act.
2. Method of Payment
The Company shall pay interest on the Securities (except defaulted
interest) to the Persons who are registered Holders at the close of business on
the June 1 or December 1 next preceding the interest payment date even if the
Securities are cancelled after the record date and on or before the interest
payment date. Holders must surrender the Securities to a Paying Agent to collect
principal payments. The Company shall pay principal, premium, if any, liquidated
damages, if any, and interest in money of the United States of America that at
the time of payment is legal tender for payment of public and private debts.
Payments in respect of the Securities represented by a Global Security
(including principal, premium, if any, liquidated damages, if any, and interest)
shall be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company or any successor depositary. The
Company will make all payments in respect of a certificated Security (including
principal, premium, if any, interest and liquidated damages, if any), at the
office of the Paying Agent, except that, at the option of the Company, payment
of interest or liquidated damages may be made by mailing a check to the
registered address of each Holder thereof; PROVIDED, HOWEVER, that payments on
the Securities may also be made, in the case of a Holder of at least $1,000,000
aggregate principal amount of Securities, by wire transfer to a U.S. dollar
account maintained by the payee with a bank in the United States if such Holder
elects payment by wire transfer by giving written notice to the Trustee or the
Paying Agent to such effect designating such account no later than 30 days
immediately preceding the relevant due date for payment (or such other date as
the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, U.S. Bank National Association, a New York banking corporation
(the "Trustee"), will act as Paying Agent and Registrar. The Company may appoint
and change any Paying Agent or Registrar without notice. The Parent, the Company
or any of the Parent's domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent or Registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of June 12,
2002 (the "Indenture") among the Company, the Note Guarantors and the Trustee.
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
ss.ss. 77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all terms and provisions
of the Indenture, and Holders (as defined in the Indenture) are referred to the
Indenture and the TIA for a statement of such terms and provisions.
The Securities are senior unsecured obligations of the Company unlimited in
aggregate principal amount at any one time outstanding, subject to the
conditions and in compliance with the covenants set forth in the Indenture. This
Security is one of the Original Securities referred to in the Indenture. The
Exh. A-7
Securities include the Original Securities, the Additional Securities and any
Exchange Securities and Private Exchange Securities issued in exchange for
Initial Securities pursuant to the Indenture. The Original Securities, the
Additional Securities and any Exchange Securities and Private Exchange
Securities are treated as a single class of securities under the Indenture. The
Indenture imposes certain limitations on the ability of the Parent, the Company
and the Parent's Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
issue or sell shares of capital stock of such Restricted Subsidiaries, enter
into or permit certain transactions with Affiliates, create or incur Liens and
make asset sales. The Indenture also imposes limitations on the ability of the
Parent, the Company and each Note Guarantor to consolidate or merge with or into
any other Person or convey, transfer or lease all or substantially all its
property.
To guarantee the due and punctual payment of the principal, interest and
liquidated damages, if any, on the Securities and all other amounts payable by
the Company under the Indenture and the Securities when and as the same shall be
due and payable, whether at maturity, by acceleration or otherwise, according to
the terms of the Securities and the Indenture, the Note Guarantors have, jointly
and severally, unconditionally guaranteed the Guaranteed Obligations on a senior
basis pursuant to the terms of the Indenture.
5. Optional Redemption
Except as set forth in this paragraph, the Company may not redeem the
Securities. Prior to June 15, 2005, the Company may, on one or more occasions,
redeem up to a maximum of 35% of the original aggregate principal amount of the
Securities (calculated giving effect to any issuance of Additional Securities)
with the Net Cash Proceeds of one or more Public Equity Offerings (i) by the
Company or (ii) by Parent to the extent the Net Cash Proceeds thereof are
contributed to the Company or used to purchase Capital Stock (other than
Disqualified Stock) of the Company from the Company, at a redemption price equal
to 107.5% of the principal amount thereof, plus accrued and unpaid interest and
liquidated damages, if any, thereon to the redemption date (subject to the right
of Holders of record on the relevant record date to receive interest and
liquidated damages, if any, due on the relevant interest payment date);
provided, however, that after giving effect to any such redemption, at least 65%
of the original aggregate principal amount of the Securities remains
outstanding. Any such redemption shall be made within 60 days of such Equity
Offering and must be made in accordance with the procedures set forth in the
Indenture.
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30 days
but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his or her registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
Exh. A-8
multiples of $1,000. If money sufficient to pay the redemption price of, and
accrued and unpaid interest and liquidated damages, if any, on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of Control and
Asset Dispositions
Upon a Change of Control, any Holder of Securities will have the right,
subject to certain conditions specified in the Indenture, to cause the Company
to repurchase all or any part of the Securities of such Holder at a purchase
price equal to 101% of the principal amount of the Securities to be repurchased
plus accrued and unpaid interest and liquidated damages, if any, to the date of
repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due and liquidated damages, if any, on the relevant
interest payment date that is on or prior to the date of purchase) as provided
in, and subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Company will be
required to offer to purchase Securities upon the occurrence of certain events.
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations of
$1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. Upon any transfer or exchange, the
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or transfer or exchange any Securities for a period of 15 days prior to the
mailing of a notice of redemption of Securities.
10. Persons Deemed Owners
Except as provided in paragraph 2 hereof, the registered Holder of this
Security may be treated as the owner of it for all purposes.
11. Unclaimed Money
If money for the payment principal, interest or liquidated damages, if any,
remains unclaimed for two years, the Trustee and the Paying Agent shall pay the
money back to the Company at its written request unless an abandoned property
law designates another Person. After any such payment, Holders entitled to the
money must look to the Company for payment as general creditors and the Trustee
and the Paying Agent shall have no further liability with respect to such money.
Exh. A-9
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate some
or all of its obligations under the Securities and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal of, and interest and liquidated damages, if any, on the Securities
to redemption or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Securities may be amended without prior notice to any Holder but with the
written consent of the Holders of at least a majority in aggregate principal
amount of the outstanding Securities and (ii) any default may be waived with the
written consent of the Holders of at least a majority in principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder, the Company, the Note Guarantors
and the Trustee may amend the Indenture or the Securities (i) to cure any
ambiguity, omission, defect or inconsistency; (ii) to comply with Article 5 of
the Indenture; (iii) to provide for uncertificated Securities in addition to or
in place of certificated Securities; (iv) to add Note Guarantees with respect to
the Securities; (v) to secure the Securities; (vi) to add additional covenants
or Exh. A-11 to surrender rights and powers conferred on the Company; (vii) to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; (viii) to make any change that
does not adversely affect the rights of any Holder; or (ix) to provide for the
issuance of the Exchange Securities, Private Exchange Securities or Additional
Securities.
14. Defaults and Remedies
If an Event of Default occurs (other than an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company) and
is continuing, the Trustee or the Holders of at least 25% in principal amount of
the outstanding Securities may declare the principal of, and accrued but unpaid
interest on, all the Securities to be due and payable. If an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Company occurs, the principal of, and interest on, all the Securities shall
become iminediately due and payable without any declaration or other act on the
part of the Trustee or any Holders. Under certain circumstances, the Holders of
a majority in principal amount of the outstanding Securities may rescind any
such acceleration with respect to the Securities and the consequences of any
such acceleration.
If an Event of Default occurs and is continuing, the Trustee shall be under
no obligation to exercise any of the rights or powers under the Indenture at the
request or direction of any of the Holders unless such Holders have offered to
the Trustee indemnity or security satisfactory to it in its reasonable
discretion against any loss, liability or expense and certain other conditions
are complied with. Except to enforce the right to receive payment of principal,
premium (if any) or interest when due, no Holder may pursue any remedy with
respect to the Indenture or the Securities unless (i) such Holder has previously
given the Trustee notice that an Event of Default is continuing, (ii) Holders of
at least 25% in principal amount of the outstanding Securities have requested
the Trustee in writing to pursue the remedy, (iii) such Holders have offered the
Trustee security or indemnity satisfactory to it in its reasonable discretion
Exh. A-10
against any loss, liability or expense, (iv) the Trustee has not complied with
such request within 60 days after the receipt of the request and the offer of
security or indemnity and (v) the Holders of a majority in principal amount of
the outstanding Securities have not given the Trustee a direction inconsistent
with such request within such 60-day period. Subject to certain restrictions,
the Holders of a majority in principal amount of the outstanding Securities are
given the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. The Trustee, however, may refuse to follow any
direction that conflicts with law or the Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that would
involve the Trustee in personal liability. Prior to taking any action under the
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Parent, the
Company or any Note Guarantor shall not have any liability for any obligations
of the Company under the Securities or the Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. by accepting a
Security, each Holder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
17. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations
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 rights of survivorship and not as tenants in common),
CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors Act).
19. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
Exh. A-11
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
20. CUSIP Numbers
The Company has caused CUSIP numbers to be printed on the Securities and
has directed the Trustee to use CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Securities or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
The Company will furnish to any Holder of Securities, upon written request
and without charge to the Holder, a copy of the Indenture which has in it the
text of this Security.
Exh. A-12
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.
Date: ............. Your Signature:
....................
Sign exactly as your name appears on the other side of this Security.
Exh. A-13
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
This certificate relates to $_______ principal amount of Securities held in
(check applicable space) ____ book-entry or ____ definitive form by the
undersigned.
The undersigned (check one box below):
[_] has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated above);
or
[_] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
[_] (1) to the Company; or
[_] (2) to the Registrar for registration in the name of the Holder, without
transfer; or
[_] (3) pursuant to an effective registration statement under the Securities
Act of 1933; or
[_] (4) inside the United States to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act of 1933) that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that such transfer is
being made in reliance on Rule 144A, in each case pursuant to and in
compliance with Rule 144A under the Securities Act of 1933; or
[_] (5) outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance with
Rule 904 under the Securities Act of 1933 and such Security shall be
held immediately after the transfer through Euroclear or Clearstrearn
until the expiration of the Restricted Period (as defined in the
Indenture); or
[_] (6) to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933) that has
furnished to the Trustee a signed letter containing certain
representations and agreements; or
[_] (7) pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Exh. A-14
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any Person other
than the registered Holder thereof, provided, however, that if box (5), (6) or
(7) is checked, the Trustee may require, prior to registering any such transfer
of the Securities, such legal opinions, certifications and other information as
the Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.
_________________________________
Your Signature
Signature Guarantee:
Date:_____________________ _________________________________
Signature must be guaranteed by a Signature of Signature
participant in a recognized signature Guarantee
guaranty medallion program or other
signature guarantor acceptable to the
Trustee
Exh. A-15
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated:_____________________ ___________________________________
NOTICE: To be executed by
an executive officer
Exh. A-16
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ]. The following
increases or decreases in this Global Security have been made:
Amount of decrease Amount of increase Principal amount of Signature of
Date of Exchange in Principal Amount in Principal Amount this Global Security authorized signatory
of this Global of this Global following such of Trustee or
Security Security decrease or increase Securities Custodian
Exh. A-17
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.06 (Asset Disposition) or 4.08 (Change of Control) of the
Indenture, check the box:
Asset Disposition [_] Change of Control [_]
If you want to elect to have only part of this Security purchased by the
Company pursuant to Section 4.06 or 4.08 of the Indenture, state the amount
($1,000 or an integral multiple thereof):
$_________________
Date:______________________ Your Signature:________________________________
(Sign exactly as your name appears on the other
side of the Security)
Signature Guarantee:____________________________________________________________
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or other
signature guarantor acceptable to the Trustee
Exh. A-18
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Exh. B-1
No. $_________
7 1/2% Senior Note due 2009
CUSIP No.____
THE KANSAS CITY SOUTHERN RAILWAY COMPANY, a Missouri corporation, promises
to pay to Cede & Co., or its registered assigns, the principal sum of
Dollars listed on the Schedule of Increases or Decreases in Global Security
attached hereto on June 15, 2009.
Interest Payment Dates: June 15 and December 15.
Record Dates: June I and December 1.
Additional provisions of this Security are set forth on the other side of
this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
The Kansas City Southern Railway Company
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
Exh. B-2
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
U. S. Bank National Association,
as Trustee, certifies
that this is one of the
Securities referred to
in the Indenture.
By:_____________________________
Authorized Signatory
*/ If the Security is to be issued in global form, add the Global
Securities Legend and the attachment from Exhibit A captioned "TO BE ATTACHED TO
GLOBAL SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
Exh. B-3
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
7 1/2% Senior Note due 2009
1. Interest
THE KANSAS CITY SOUTHERN RAILWAY COMPANY, a Missouri corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The Company
shall pay interest semiannually on June 15 and December 15 of each year.
Interest on the Securities shall accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for, from June 12, 2002 until the principal hereof is due.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at the rate borne by
the Securities plus 1% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
2. Method of Payment
The Company shall pay interest on the Securities (except defaulted
interest) to the Persons who are registered Holders at the close of business on
the June 1 and December 1 next preceding the interest payment date even if the
Securities are cancelled after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company shall pay principal, premium, if any, and
interest in money of the United States of America that at the time of payment is
legal tender for payment of public and private debts. Payments in respect of the
Securities represented by a Global Security (including principal, premium and
interest) shall be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company or any successor depositary.
The Company will make all payments in respect of a certificated Security
(including principal, premium, if any, and interest) at the office of the Paying
Agent, except that, at the option of the Company, payment of interest may be
made by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Securities may also be made, in the case
of a Holder of at least $1,000,000 aggregate principal amount of Securities, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in
the United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating
such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, U.S. Bank National Association, a New York banking corporation
(the "Trustee"), will act as Paying Agent and Registrar. The Company may appoint
and change any Paying Agent or Registrar without notice. The Company or any of
its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent
or Registrar.
Exh. B-4
4. Indenture
The Company issued the Securities under an Indenture dated as of June 12,
2002 (the "Indenture") among the Company, the Note Guarantors and the Trustee.
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
ss.ss. 77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all terms and provisions
of the Indenture, and Holders (as defined in the Indenture) are referred to the
Indenture and the TIA for a statement of such terms and provisions.
The Securities are senior unsecured obligations of the Company unlimited in
aggregate principal amount at any one time outstanding, subject to the
conditions and in compliance with the covenants set forth in the Indenture. This
Security is one of the Exchange Securities referred to in the Indenture. The
Securities include the Original Securities, the Additional Securities and any
Exchange Securities and Private Exchange Securities issued in exchange for
Initial Securities pursuant to the Indenture. The Original Securities, the
Additional Securities, Exchange Securities and the Private Exchange Securities
are treated as a single class of securities under the Indenture. The Indenture
imposes certain limitations on the ability of the Parent, the Company and the
Parent's Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
issue or sell shares of capital stock of such Restricted Subsidiaries, enter
into or permit certain transactions with Affiliates, create or incur Liens and
make Asset Sales. The Indenture also imposes limitations on the ability of the
Parent, the Company and each Note Guarantor to consolidate or merge with or into
any other Person or convey, transfer or lease all or substantially all of its
property.
To guarantee the due and punctual payment of the principal and interest, if
any, on the Securities and all other amounts payable by the Company under the
Indenture and the Securities when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Note Guarantors have, jointly and severally,
unconditionally guaranteed the Guaranteed Obligations on a senior basis pursuant
to the terms of the Indenture.
5. Optional Redemption
Except as set forth in this paragraph, the Company may not redeem the
Securities. Prior to June 15, 2005, the Company may, on one or more occasions,
redeem up to a maximum of 35% of the original aggregate principal amount of the
Securities (calculated giving effect to any issuance of Additional Securities)
with the Net Cash Proceeds of one or more Equity Offerings (i) by the Company or
(ii) by Parent to the extent the Net Cash Proceeds thereof are contributed to
the Company or used to purchase Capital Stock (other than Disqualified Stock) of
the Company from the Company, at a redemption price equal to 107.5% of the
principal amount thereof, plus accrued and unpaid interest and liquidated
damages thereon, if any, to the redemption date (subject to the right of Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date); provided, however, that after giving effect to
Exh. B-5
any such redemption, at least 65% of the original aggregate principal amount of
the Securities remains outstanding. Any such redemption shall be made within 60
days of such Equity Offering and must be made in accordance with the procedures
set forth in the Indenture.
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30 days
but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his or her registered address. Securities in
denominations larger than $1,000 maybe redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of, and
accrued and unpaid interest and liquidated damages, if any, on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of Control and
Asset Dispositions
Upon a Change of Control, any Holder of Securities will have the right,
subject to certain conditions specified in the Indenture, to cause the Company
to repurchase all or any part of the Securities of such Holder at a purchase
price equal to 101% of the principal amount of the Securities to be repurchased
plus accrued and unpaid interest and liquidated damages, if any, to the date of
repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date that is on or
prior to the date of purchase) as provided in, and subject to the terms of, the
Indenture.
In accordance with Section 4.06 of the Indenture, the Company will be
required to offer to purchase Securities upon the occurrence of certain events.
9. Denominations Transfer; Exchange
The Securities are in registered form without coupons in denominations of
$1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. Upon any transfer or exchange, the
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or transfer or exchange any Securities for a period of 15 days prior to the
mailing of a notice of redemption of Securities or 15 days before an interest
payment date.
Exh. B-6
10. Persons Deemed Owners
Except as provided in paragraph 2 hereof, the registered Holder of this
Security may be treated as the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee and the Paying Agent shall pay the money back to the Company
at its written request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look to the
Company for payment as general creditors and the Trustee and the Paying Agent
shall have no further liability with respect to such money.
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate some
or all of its obligations under the Securities and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal of and interest on, the Securities to redemption or maturity, as
the case may be.
13. Amendments, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Securities may be amended without prior notice to any Holder but with the
written consent of the Holders of at least a majority in aggregate principal
amount of the outstanding Securities and (ii) any default may be waived with the
written consent of the Holders of at least a majority in principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder, the Company, the Note Guarantors
and the Trustee may amend the Indenture or the Securities (i) to cure any
ambiguity, omission, defect or inconsistency; (ii) to comply with Article 5 of
the Indenture; (iii) to provide for uncertificated Securities in addition to or
in place of certificated Securities; (iv) to add Note Guarantees with respect to
the Securities; (v) to secure the Securities; (vi) to add additional covenants
or to surrender rights and powers conferred on the Company; (vii) to comply with
the requirements of the SEC in order to effect or maintain the qualification of
the Indenture under the TIA; (viii) to make any change that does not adversely
affect the rights of any Holder; or (ix) to provide for the issuance of the
Exchange Securities, Private Exchange Securities or Additional Securities.
14. Defaults and Remedies
If an Event of Default occurs (other than an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company) and
is continuing, the Trustee or the Holders of at least 25% in principal amount of
the outstanding Securities may declare the principal of, and accrued but unpaid
interest on, all the Securities to be due and payable. If an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Company occurs, the principal of, and interest on, all the Securities shall
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders. Under certain circumstances, the Holders of
a majority in principal
Exh. B-7
amount of the outstanding Securities may rescind any such acceleration with
respect to the Securities and the consequences of any such acceleration.
If an Event of Default occurs and is continuing, the Trustee shall be under
no obligation to exercise any of the rights or powers under the Indenture at the
request or direction of any of the Holders unless such Holders have offered to
the Trustee indemnity or security satisfactory to it in its reasonable
discretion against any loss, liability or expense and certain other conditions
are complied with. Except to enforce the right to receive payment of principal,
premium (if any) or interest when due, no Holder may pursue any remedy with
respect to the Indenture or the Securities unless (i) such Holder has previously
given the Trustee notice that an Event of Default is continuing, (ii) Holders of
at least 25% in principal amount of the outstanding Securities have requested
the Trustee in writing to pursue the remedy, (iii) such Holders have offered the
Trustee security or indemnity satisfactory to it in its reasonable discretion
against any loss, liability or expense, (iv) the Trustee has not complied with
such request within 60 days after the receipt of the request and the offer of
security or indemnity and (v) the Holders of a majority in principal amount of
the outstanding Securities have not given the Trustee a direction inconsistent
with such request within such 60-day period. Subject to certain restrictions,
the Holders of a majority in principal amount of the outstanding Securities are
given the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. The Trustee, however, may refuse to follow any
direction that conflicts with law or the Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that would
involve the Trustee in personal liability. Prior to taking any action under the
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Parent, the Company or its Affiliates and may otherwise deal with
the Parent, the Company or its Affiliates with the same rights it would have if
it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Parent, the
Company or any Note Guarantor shall not have any liability for any obligations
of the Company under the Securities or the Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. By accepting a
Security, each Holder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
17. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
Exh. B-8
18. Abbreviations
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 rights of survivorship and not as tenants in common),
CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors Act).
19. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
20. CUSIP Numbers
The Company has caused CUSIP numbers to be printed on the Securities and
has directed the Trustee to use CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Securities or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
The Company will furnish to any Holder of Securities, upon written request
and without charge to the Holder, a copy of the Indenture which has in it the
text of this Security.
Exh. B-9
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
Date:___________________ Your Signature:______________________
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security. Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
Exh. B-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.06 (Asset Disposition) or 4.08 (Change of Control) of the
Indenture, check the box:
Asset Disposition [ ] Change of Control [ ]
If you want to elect to have only part of this Security purchased by the
Company pursuant to Section 4.06 or 4.08 of the Indenture, state the amount
($1,000 or an integral multiple thereof):
$_______________________
Date:____________________ Your Signature:______________________________________
(Sign exactly as your name appears on
the other side of the Security)
Signature Guarantee:____________________________________________
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or other
signature guarantor acceptable to the Trustee
Exh. B-11
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ]. The
following increases or decreases in this Global Security have been made:
Amount of decrease Amount of increase Principal amount of Signature of
Date of Exchange in Principal Amount in Principal Amount this Global Security authorized signatory
of this Global of this Global following such of Trustee or
Security Security decrease or increase Securities Custodian
Exh. B-12
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of , among
(GUARANTOR] (the "New Guarantor"), a subsidiary of THE KANSAS CITY SOUTHERN
RAILWAY COMPANY (or its successor), a Missouri corporation (the "Company"),
KANSAS CITY SOUTHERN, GATEWAY EASTERN RAILWAY COMPANY, MID-SOUTH MICROWAVE,
INC., PABTEX GP, LLC, PABTEX L.P., RICE-CARDEN CORPORATION, SIS BULK HOLDING
INC., SOUTHERN DEVELOPMENT COMPANY, SOUTHERN INDUSTRIAL SERVICES, INC.,
TRANS-SERVE, INC., [OTHER EXISTING GUARANTORS] and U.S. BANK ASSOCIATION, a New
York banking corporation, as trustee under the indenture referred to below (the
"Trustee").
WITNESSETH:
WHEREAS the Company and [OLD GUARANTORS] (the "Existing Guarantors") have
heretofore executed and delivered to the Trustee an Indenture (the "Indenture")
dated as of June 15, 2002, providing for the issuance of an unlimited aggregate
principal amount of 7 1/2 % Senior Notes due 2009 (the "Securities"), subject to
the conditions and in compliance with the covenants set forth in the Indenture;
WHEREAS Section 4.11 of the Indenture provides that under certain
circumstances the Company is required to cause the New Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all the Company's obligations under
the Securities pursuant to a Note Guarantee on the terms and conditions set
forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the
Company and the Existing Guarantors are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities as follows:
1. Agreement to Guarantee. The New Guarantor hereby agrees, jointly and
severally with all the Existing Guarantors, to unconditionally guarantee the
Company's obligations under the Securities on the terms and subject to the
conditions set forth in Article 10 of the Indenture and to be bound by all other
applicable provisions of the Indenture and Securities.
2. Ratification of Indenture; Supplemental Indentures Part of Indenture.
Except as expressly amended hereby, the Indenture is In all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every holder of Securities heretofore or
hereafter authenticated and delivered shall be bound hereby.
Exh. C-1
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
4. Trustee Makes No Representation. The Trustee makes no representation as
to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR]
By: ________________________________________
Name:
Title:
THE KANSAS CITY SOUTHERN RAILWAY COMPANY
By: ________________________________________
Name:
Title:
KANSAS CITY SOUTHERN
By: ________________________________________
Name:
Title:
GATEWAY EASTERN RAILWAY COMPANY
By: ________________________________________
Name:
Title:
Exh. C-2
MID-SOUTH MICROWAVE, INC.
By: ________________________________________
Name:
Title:
PABTEX GP, LLC
By: ________________________________________
Name:
Title:
PABTEX L.P.
By: ________________________________________
Name:
Title:
RICE-CARDEN CORPORATION
By: ________________________________________
Name:
Title:
SIS BULK HOLDING, INC.
By: ________________________________________
Name:
Title:
SOUTHERN DEVELOPMENT COMPANY
By: ________________________________________
Name:
Title:
SOUTHERN INDUSTRIAL SERVICES, INC.
By: ________________________________________
Name:
Title:
Exh. C-3
TRANS-SERVE, INC.
By: ________________________________________
Name:
Title:
[OTHER EXISTING GUARANTORS]
By: ________________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: ________________________________________
Name:
Title:
Exh. C-4
EXHIBIT D
Form of
Transferee Letter of Representation
The Kansas City Southern Railway Company
427 West 12th Street
Kansas City, MO 64105
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ] principal
amount of the 7 1/2% Senior Notes due 2009 (the "Securities") of The Kansas City
Southern Railway Company (the "Company").
Upon transfer, the Securities would be registered in the name of the new
beneficial owner as follows:
Name:___________________________________
Address:________________________________
Taxpayer ID Number:_____________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule 50 1
(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Securities, and we are acquiring the Securities not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we invest in or purchase securities similar to the Securities in the normal
course of our business. We, and any accounts for which we are acting, are each
able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Securities to offer, sell or otherwise
transfer such Securities prior to the date that is two years after the later of
the date of original issue and the last date on which the Company or any
affiliate of the Company was the owner of such Securities (or any predecessor
thereto) (the "Resale Restriction Termination Date") only (a) to the Company,
(b) pursuant to a registration statement that has been declared effective under
the Securities Act, (c) in a transaction complying with the requirements of Rule
Exh. D-1
144A under the Securities Act ("Rule 144A"), to a person we reasonably believe
is a qualified institutional buyer under Rule 144A (a "QIB") that is purchasing
for its own account or for the account of a QIB and to whom notice is given that
the transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in a minimum principal amount of Securities
of $250,000, or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Securities
is proposed to be made pursuant to clause (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Company and the
Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act and that it is acquiring such Securities for
investment purposes and not for distribution in violation of the Securities Act.
Each purchaser acknowledges that the Company and the Trustee reserve the right
prior to the offer, sale or other transfer prior to the Resale Restriction
Termination Date of the Securities pursuant to clause (d), (e) or (f) above to
require the delivery of an opinion of counsel, certifications or other
information satisfactory to the Company and the Trustee.
TRANSFEREE:_________________________________
By:_________________________________________
Exh. D-2
EXHIBIT E
FORM OF NOTE GUARANTEES
[Name of Note Guarantors] (the "Note Guarantors," which term includes any
successor Person under the Indenture dated as of June 12, 2002 among The Kansas
City Southern Railway Company, as issuer, the Note Guarantors and U.S. Bank
National Association, as trustee (the "Indenture")) has unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions of the Indenture, the due and punctual payment of the principal of,
any premium and interest on the Securities, when and as the same shall become
due and payable, whether at maturity, by acceleration, redemption, repayment or
otherwise, all in accordance with the terms set forth in Article 10 of the
Indenture.
Each capitalized term used but not defined herein shall have the meaning
ascribed thereto in the Indenture.
The obligation of the undersigned to the Holders of the Securities and to
the Trustee pursuant to these Note Guarantees and in the Indenture are expressly
set forth in the Indenture and reference is hereby made to the Indenture for the
precise terms of the Note Guarantees and all of the other provisions of the
Indenture to which these Note Guarantees relate.
These Note Guarantees shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made or instruments
entered into and, in each case, performed in said state.
Exh. E-1
IN WITNESS WHEREOF, the Note Guarantors have caused this instrument to be
duly executed.
By and on Behalf of:
[NAME OF NOTE GUARANTORS]
By:__________________________________
Name:
Title:
Exh. E-2
EXHIBIT F
Exhibit Describing Indebtedness of the Company
Outstanding on the Date of this Indenture
- -----------------------------------------------------------------------------------------------------------------------
Obligor Payee Description Maturity Balance
as of 3/31/02
- -----------------------------------------------------------------------------------------------------------------------
The Kansas City Chemical Bank Locomotive Purchase 8/04 $2,772,440
Southern Railway
Company
- -----------------------------------------------------------------------------------------------------------------------
The Kansas City
Southern Railway Chemical Bank Locomotive Purchase 1/03 3,015,079
Company
- -----------------------------------------------------------------------------------------------------------------------
The Kansas City
Southern Railway JP Morgan Chase Bank Locomotive Purchase 12/06 27,040,970
Company
- -----------------------------------------------------------------------------------------------------------------------
The Kansas City
Southern Railway Bank of New York Locomotive Purchase 5/03 8,875,001
Company
- -----------------------------------------------------------------------------------------------------------------------
The Kansas City
Southern Railway Connecticut Bank and Capital Lease/ 6/04 604,879
Company Trust Rolling Stock
- -----------------------------------------------------------------------------------------------------------------------
The Kansas City
Southern Railway Trinity Industries Capital Lease/ 2/06 406,441
Company Rolling Stock
- -----------------------------------------------------------------------------------------------------------------------
The Kansas City
Southern Railway Senior Unsecured Senior Unsecured Notes 10/08 200,000,000
Company Notes
- -----------------------------------------------------------------------------------------------------------------------
The Kansas City
Southern Railway Pitney Bowes Capital Lease/ 9/09 1,916,216
Company Rolling Stock
- -----------------------------------------------------------------------------------------------------------------------
The Kansas City
Southern Railway State of Illinois Jacksonville 1/06 340,761
Company Rehabilitation Project
- -----------------------------------------------------------------------------------------------------------------------
The Kansas City
Southern Railway State of Illinois East St. Louis 4/07 188,593
Company Rehabilitation Project
- -----------------------------------------------------------------------------------------------------------------------
The Kansas City
Southern Railway State of Illinois Roadhouse to 1/07 1,593,537
Company East Louisiana
- -----------------------------------------------------------------------------------------------------------------------
Exh. F-1
- -----------------------------------------------------------------------------------------------------------------------
Obligor Payee Description Maturity Balance
as of 3/31/02
- -----------------------------------------------------------------------------------------------------------------------
The Kansas City State of Illinois Venice Intermodel 12/09 1,399,477
Southern Railway Facility
Company Rehabilitation
- -----------------------------------------------------------------------------------------------------------------------
Gateway Eastern State of Illinois Rehabilitation Project 2/18 802,088
Railway Company Wann-Lenox
- -----------------------------------------------------------------------------------------------------------------------
Wyandotte Garage Lincoln National Mortgage on 12/12 4,984,271
Corporation Property
- -----------------------------------------------------------------------------------------------------------------------
Southern Industrial Industrial Revenue Industrial Revenue 5/04 3,000,000
Services, Inc] Bonds Bonds
TranServe, Inc.
- -----------------------------------------------------------------------------------------------------------------------
Kansas City Unsecured Notes and Unsecured Notes and 7/02-12/25 1,601,000
Southern Debentures Debentures
- -----------------------------------------------------------------------------------------------------------------------
Kansas City Panama Canal Railway Contingent Capital N/A 7,500,000
Southern Company contribution
obligation
- -----------------------------------------------------------------------------------------------------------------------
Kansas City Panama Canal Railway Guarantee of Notes N/A 2,400,000
Southern Company Related to Purchase
of Freight and
Passenger Rail Cars
- -----------------------------------------------------------------------------------------------------------------------
Exh. F-2