Exhibit 4.11
REMARKETING AGREEMENT, dated as of , 2001 (the
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"Agreement"), by and between Kansas City Southern Industries, Inc., a
Delaware corporation (the "Company"), The Bank of New York, a New York
banking corporation, not individually but solely as Purchase Contract Agent
(the "Purchase Contract Agent") and as attorney-in-fact of the holders of
Purchase Contracts (as defined in the Purchase Contract Agreement (as
defined herein)), and J.P. Morgan Securities Inc. (the "Remarketing
Agent").
W I T N E S S E T H:
WHEREAS the Company will issue $115,000,000 (or $132,250,000 if the
Underwriters' overallotment option is exercised in full) aggregate Stated Amount
of its Mandatory Convertible Units (the "Mandatory Convertible Units") under the
Purchase Contract Agreement, dated as of , 2001, by and between the Purchase
Contract Agent and the Company (the "Purchase Contract Agreement");
WHEREAS the Mandatory Convertible Units will initially consist of 4,600,000
(or 5,290,000 if the underwriters' overallotment option is exercised in full)
units referred to as "Corporate Units;"
WHEREAS The Kansas City Southern Railway Company ("KCSR"), a wholly owned
subsidiary of the Company, will issue concurrently in connection with the
issuance of the Mandatory Convertible Units $115,000,000 (or $132,250,000 if the
Underwriters' overallotment option is exercised in full) aggregate principal
amount of % Senior Notes due August 17, 2007 (the "Notes") of KCSR, to be
guaranteed by the Company and certain of its subsidiaries;
WHEREAS the Notes forming a part of the Corporate Units will be pledged
pursuant to the Pledge Agreement (the "Pledge Agreement"), dated as of ,
2001, by and among the Company, The Chase Manhattan Bank, as collateral agent
(the "Collateral Agent") and the Purchase Contract Agent, to secure a Corporate
Units holder's obligations under the related Purchase Contract on the Purchase
Contract Settlement Date;
WHEREAS the Notes of the Note holders electing to have their Notes
remarketed and of the Corporate Unit holders will be remarketed by the
Remarketing Agent on the third Business Day immediately preceding, May 17, 2004
(the "Initial Remarketing Date");
WHEREAS in the event of a Failed Initial Remarketing, the Notes of the Note
holders electing to have their Notes remarketed and of the Corporate Unit
holders who have elected not to settle the Purchase Contracts related to their
Corporate Units by Cash Settlement and who have not early settled their Purchase
Contracts will be remarketed by the Remarketing Agent on the third Business Day
immediately preceding the Purchase Contract Settlement Date;
WHEREAS in the event of a Successful Initial Remarketing, the applicable
interest rate on the Notes will be reset on the Initial Remarketing Date, to the
Reset Rate to be determined by the Reset Agent as the rate that such Notes
should bear in order for the Applicable Principal Amount of the Notes to have an
approximate aggregate market value of 100.25% of the Treasury Portfolio Purchase
Price on the Initial Remarketing Date, provided that in the determination of
such Reset Rate, the Reset Rate shall be subject to the Reset Spread Cap and the
Company shall, if applicable, limit the Reset Rate to the maximum rate permitted
by applicable law;
WHEREAS, in the event of a Failed Initial Remarketing, the applicable
interest rate on the Notes that remain outstanding on and after the Purchase
Contract Settlement Date will be reset on the third Business Day immediately
preceding the Purchase Contract Settlement Date, to the Reset Rate to be
determined by the Reset Agent as the rate that such Notes should bear in order
to have an approximate market value of 100.25%, of the aggregate principal
amount of the Notes on the third Business Day immediately preceding the Purchase
Contract Settlement Date, provided that in the determination of such Reset Rate,
the Reset Rate shall be subject to the Reset Spread Cap and the Company shall,
if applicable, limit the Reset Rate to the maximum rate permitted by applicable
law;
WHEREAS the Company has requested J.P. Morgan Securities Inc. ("JPMorgan")
to act as the Reset Agent and as the Remarketing Agent, and as such to perform
the services described herein; and
WHEREAS JPMorgan is willing to act as Reset Agent and Remarketing Agent and
as such to perform such duties on the terms and conditions expressly set forth
herein;
NOW, THEREFORE, for and in consideration of the covenants herein made, and
subject to the conditions herein set forth, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used and not defined in this
Agreement, in the recitals hereto or in the paragraph preceding such recitals
shall have the meanings assigned to them in the Purchase Contract Agreement or,
if not therein defined, the Pledge Agreement.
SECTION 2. APPOINTMENT AND OBLIGATIONS OF RESET AGENT AND REMARKETING
AGENT. (a) The Company hereby appoints JPMorgan and JPMorgan hereby accepts such
appointment, (i) as the Reset Agent to determine in consultation with the
Company, in the manner provided for herein and in the Indenture (as in effect on
the date of this Remarketing Agreement) with respect to the Notes, (1) the Reset
Rate that, in the opinion of the Reset Agent, will, when applied to the Notes,
enable the Applicable Principal Amount of the Notes to have an approximate
aggregate market value of 100.25% of the Treasury Portfolio Purchase Price as of
the Initial Remarketing Date and (2) in the event of a Failed Initial
Remarketing, the Reset Rate that, in the opinion of the Reset Agent, will, when
applied to the Notes, enable a Note to have an approximate market value of
100.25% of its principal amount as of the third Business Day preceding the
Purchase Contract Settlement Date, provided, in each case, (x) that the Reset
Spread shall not exceed the Reset Spread Cap and (y) that the Company, by notice
to the Reset Agent prior to the tenth Business Day preceding May 17, 2004, in
the case of the Initial Remarketing, or the Purchase Contract Settlement Date,
in the case of the Secondary Remarketing, shall, if applicable, limit the Reset
Rate so that it does not exceed the maximum rate permitted by applicable law and
(ii) as the exclusive Remarketing Agent (subject to the right of JPMorgan to
appoint additional remarketing agents hereunder as described below) to (1)
remarket the Notes of the Note holders electing to have their Notes remarketed
and of the Corporate Units holders on the Initial Remarketing Date, for
settlement on May 17, 2004, and (2) in the case of a Failed Initial Remarketing,
remarket the Notes of the Note holders electing to have their Notes remarketed
or of the Corporate Units holders who have not early settled the related
Purchase Contracts and have failed to notify the Purchase Contract Agent, on or
prior to the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, of their intention to settle the related Purchase Contracts
through Cash Settlement. In connection with a remarketing contemplated hereby,
the Remarketing Agent will enter into a Supplemental Remarketing Agreement (the
"Supplemental Remarketing Agreement") with the Company and the Purchase Contract
Agent, which shall either be (i) substantially in the form attached hereto as
Exhibit A (with such changes as the Company and the Remarketing Agent may agree
upon, it being understood that changes may be necessary in the representations,
warranties, covenants and other provisions of the Supplemental Remarketing
Agreement due to changes in law or facts and circumstances or in the event that
JPMorgan is not the sole remarketing agent, and with such further changes
therein as the Remarketing Agent may reasonably request, or (ii) in such other
form as the Remarketing Agent may reasonably request, subject to the approval of
the Company (such approval not to be unreasonably withheld). Anything herein to
the contrary notwithstanding, JPMorgan shall not be obligated to act as
Remarketing Agent or Reset Agent hereunder unless the Supplemental Remarketing
Agreement is in form and substance reasonably satisfactory to JPMorgan. The
Company agrees that JPMorgan shall have the right, on 15 Business Days notice to
the Company, to appoint one or more additional remarketing agents so long as any
such additional remarketing agents shall be reasonably acceptable to the
Company. Upon any such appointment, the parties shall enter into an appropriate
amendment to this Agreement to reflect the addition of any such remarketing
agent.
(b) Pursuant to the Supplemental Remarketing Agreement, the Remarketing
Agent, either as sole remarketing agent or as representative of a group of
remarketing agents appointed as aforesaid, will agree, subject to the terms and
conditions set forth herein and therein, to use its commercially reasonable best
efforts to (i) remarket, on the Initial Remarketing Date, the Notes that the
Trustee (as such term is defined in the Indenture) shall have notified the
Remarketing Agent have been tendered for, or otherwise are to be included in,
the Initial Remarketing, at a price per Note such that the aggregate price for
the Applicable Principal Amount of the Notes is approximately 100.25% of the
Treasury Portfolio Purchase Price and (ii) in the event of a Failed Initial
Remarketing, remarket, on the third Business Day immediately preceding the
Purchase Contract Settlement Date, the Notes that the Trustee shall have
notified the Remarketing Agent have been tendered for, or otherwise are to be
included in, the Secondary Remarketing, at a price of approximately 100.25%yof
the aggregate principal amount of such Notes. Notwithstanding the preceding
sentence, the Remarketing Agent shall not remarket any Notes for a price less
than the price (the "Minimum Initial Remarketing Price") necessary for the
Applicable Principal Amount of the Notes to have an aggregate price equal to
100% of the Treasury Portfolio Purchase Price, in the case of the Initial
Remarketing, or the aggregate principal amount of such Notes, in the case of the
Secondary Remarketing. After deducting the fee specified in Section 3 below, the
proceeds of such Initial Remarketing or Secondary Remarketing, as the case may
be, shall be paid to the Collateral Agent in accordance with Section 4.06 or
6.03 of the Pledge Agreement and Section 5.03 or 5.04 of the Purchase Contract
Agreement (each of which Sections are incorporated herein by reference). The
right of each holder of Notes or Corporate Units to have Notes tendered for the
Initial Remarketing or the Secondary Remarketing, as the case may be, shall be
limited to the extent that (i) the Remarketing Agent conducts an Initial
Remarketing and, in the event of a Failed Initial Remarketing, a Secondary
Remarketing pursuant to the terms of this Agreement, (ii) Notes tendered have
not been called for redemption, (iii) the Remarketing Agent is able to find a
purchaser or purchasers for tendered Notes at a price of not less than the
Minimum Initial Remarketing Price, in the case of the Initial Remarketing, and
100% of the principal amount thereof, in the case of the Secondary Remarketing
and (iv) such purchaser or purchasers deliver the purchase price therefor to the
Remarketing Agent as and when required.
(c) It is understood and agreed that neither the Remarketing Agent nor the
Reset Agent shall have any obligation whatsoever to purchase any Notes, whether
in the Initial Remarketing, Secondary Remarketing or otherwise, and shall in no
way be obligated to provide funds to make payment upon tender of Notes for
remarketing or to otherwise expend or risk their own funds or incur or be
exposed to financial liability in the performance of their respective duties
under this Agreement or the Supplemental Remarketing Agreement, and, without
limitation of the foregoing, the Remarketing Agent shall not be deemed an
underwriter of the remarketed Notes. The Company shall not be obligated in any
case to provide funds to make payment upon tender of Notes for remarketing.
(d) [Although no assurance can be given, based on current Company
performance and market conditions as of the date hereof, and the provisions set
forth herein (and incorporated by reference hereto) including, without
limitation, the method by which the Reset Spread and the Reset Spread Cap are
determined, the Reset Agent does not expect that the Initial Remarketing and, if
applicable, the Secondary Remarketing of the Notes would fail if undertaken on
the date hereof.]
SECTION 3. FEES. In the event of a Successful Initial Remarketing, the
Remarketing Agent shall retain as a remarketing fee (the "Remarketing Fee") an
amount not exceeding 25 basis points (0.25%) of the Minimum Initial Remarketing
Price from any amount received in connection with such Initial Remarketing in
excess of the Minimum Initial Remarketing Price. In the event of a Successful
Secondary Remarketing, the Remarketing Agent shall retain as the Remarketing Fee
an amount not exceeding 25 basis points (0.25%), of the principal amount of the
remarketed Notes from any amount received in connection with such Secondary
Remarketing in excess of the aggregate principal amount of such remarketed
Notes. In addition, the Reset Agent shall, in either case, receive from the
Company a reasonable and customary fee (the "Reset Agent Fee"); PROVIDED,
HOWEVER, that if the Remarketing Agent shall also act as the Reset Agent, then
the Reset Agent shall not be entitled to receive any such Reset Agent Fee.
Payment of such Reset Agent Fee shall be made by the Company on the Initial
Remarketing Date, in the case of a Successful Initial Remarketing, or on the
third Business Day immediately preceding the Purchase Contract Settlement Date,
in the case of a Successful Secondary Remarketing, in immediately available
funds or, upon the instructions of the Reset Agent, by certified or official
bank check or checks or by wire transfer.
SECTION 4. REPLACEMENT AND RESIGNATION OF REMARKETING AGENT. (a) The
Company may in its absolute discretion replace JPMorgan as the Remarketing Agent
and as the Reset Agent hereunder by giving notice prior to 3:00 p.m., New York
City time (i) on the eleventh Business Day immediately prior to May 17, 2004, or
(ii) in the event of a Failed Initial Remarketing, prior to 3:00 p.m., New York
City time on the eleventh Business Day immediately prior to the Purchase
Contract Settlement Date, provided, in either case, that the Company must
replace JPMorgan both as Remarketing Agent and as Reset Agent unless JPMorgan
shall otherwise agree. Any such replacement shall become effective upon the
Company's appointment of a successor to perform the services that would
otherwise be performed hereunder by the Remarketing Agent and the Reset Agent.
Upon providing such notice, the Company shall use all reasonable efforts to
appoint such a successor and to enter into a remarketing agreement with such
successor as soon as reasonably practicable.
(b) JPMorgan may resign at any time and be discharged from its duties and
obligations hereunder as the Remarketing Agent and/or as the Reset Agent by
giving notice prior to 3:00 p.m., New York City time (i) on the eleventh
Business Day immediately prior to May 17, 2004, or (ii) in the event of a Failed
Initial Remarketing, on the eleventh Business Day immediately prior to the
Purchase Contract Settlement Date. Any such resignation shall become effective
upon the Company's appointment of a successor to perform the services that would
otherwise be performed hereunder by the Remarketing Agent and/or the Reset
Agent. Upon receiving notice from the Remarketing Agent and/or the Reset Agent
that it wishes to resign hereunder, the Company shall appoint such a successor
and enter into a remarketing agreement with it as soon as reasonably
practicable.
SECTION 5. DEALING IN THE SECURITIES. Each of the Remarketing Agent and the
Reset Agent, when acting hereunder or, in the case of the Remarketing Agent,
under the Supplemental Remarketing Agreement, or when acting in its individual
or any other capacity, may, to the extent permitted by law, buy, sell, hold or
deal in any of the Notes, Treasury Units, Corporate Units or any other
securities of the Company. With respect to any Notes, Treasury Units, Corporate
Units or any other securities of the Company owned by it, each of the
Remarketing Agent and the Reset Agent may exercise any vote or join in any
action with like effect as if it did not act in any capacity hereunder. Each of
the Remarketing Agent and the Reset Agent, in its individual capacity, either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Company as freely as if it did not act in any
capacity hereunder.
SECTION 6. REGISTRATION STATEMENT AND PROSPECTUS. In connection with the
Initial Remarketing, if and to the extent required in the view of counsel (which
need not be an opinion) for either the Remarketing Agent or the Company by
applicable law, regulations or interpretations in effect at the time of such
Initial Remarketing, the Company (i) shall use its reasonable efforts to have a
registration statement relating to the Notes effective under the Securities Act
of 1933 prior to the third Business Day immediately preceding May 17, 2004, (ii)
if requested by the Remarketing Agent shall furnish a current preliminary
prospectus and, if applicable, a current preliminary prospectus supplement to be
used by the Remarketing Agent in the Initial Remarketing not later than seven
Business Days prior to May 17, 2004 (or such earlier date as the Remarketing
Agent may reasonably request) and in such quantities as the Remarketing Agent
may reasonably request, and (iii) shall furnish a current final prospectus and,
if applicable, a final prospectus supplement to be used by the Remarketing Agent
in the Initial Remarketing not later than the third Business Day immediately
preceding May 17, 2004, in such quantities as the Remarketing Agent may
reasonably request, and shall pay all expenses relating thereto. In the event of
a Failed Initial Remarketing and in connection with the Secondary Remarketing,
if and to the extent required in the view of counsel (which need not be an
opinion) for either the Remarketing Agent or the Company by applicable law,
regulations or interpretations in effect at the time of such Secondary
Remarketing, the Company (i) shall use its reasonable efforts to have a
registration statement relating to the Notes effective under the Securities Act
of 1933 prior to the third Business Day immediately preceding the Purchase
Contract Settlement Date, (ii) if requested by the Remarketing Agent, shall
furnish a current preliminary prospectus and, if applicable, a current
preliminary prospectus supplement to be used by the Remarketing Agent in the
Secondary Remarketing not later than seven Business Days prior to the Purchase
Contract Settlement Date (or such earlier date as the Remarketing Agent may
reasonably request) and in such quantities as the Remarketing Agent may
reasonably request, and (iii) shall furnish a current final prospectus and, if
applicable, a final prospectus supplement to be used by the Remarketing Agent in
the Secondary Remarketing not later than the third Business Day immediately
preceding the Purchase Contract Settlement Date in such quantities as the
Remarketing Agent may reasonably request, and shall pay all expenses relating
thereto. The Company shall also take all such actions as may (upon advice of
counsel to the Company or the Remarketing Agent) be necessary or desirable under
state securities or blue sky laws in connection with the Initial Remarketing and
the Secondary Remarketing.
SECTION 7. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS. (a) The
obligations of the Remarketing Agent and the Reset Agent under this Agreement
and, in the case of the Remarketing Agent, the Supplemental Remarketing
Agreement shall be subject to the terms and conditions of this Agreement and the
Supplemental Remarketing Agreement, including, without limitation, the following
conditions: (i) the Notes tendered for, or otherwise to be included in the
Initial Remarketing or Secondary Remarketing, as the case may be, have not been
called for redemption, (ii) the Remarketing Agent is able to find a purchaser or
purchasers for tendered Notes (1) in the case of the Initial Remarketing, at a
price not less than the Minimum Initial Remarketing Price, and (2) in the case
of the Secondary Remarketing, at a price not less than 100% of the principal
amount thereof, (iii) the Purchase Contract Agent, the Collateral Agent, the
Custodial Agent, the Company and the Trustee shall have performed their
respective obligations in connection with the Initial Remarketing and, in the
event of a Failed Initial Remarketing, in connection with the Secondary
Remarketing, in each case pursuant to the Purchase Contract Agreement, the
Pledge Agreement, the Indenture, this Agreement and the Supplemental Remarketing
Agreement (including, without limitation, giving the Remarketing Agent notice of
the Treasury Portfolio Purchase Price no later than 10:00 a.m., New York City
time, on the fourth Business Day prior to May 17, 2004, in the case of the
Initial Remarketing, and giving the Remarketing Agent notice of the aggregate
principal amount, as the case may be, of Notes to be remarketed, no later than
10:00 a.m., New York City time, on the fourth Business Day prior to the Purchase
Contract Settlement Date, in the case of the Secondary Remarketing, and, in each
case, concurrently delivering the Notes to be remarketed to the Remarketing
Agent), (iv) no Event of Default (as defined in the Indenture) shall have
occurred and be continuing, (v) the accuracy of the representations and
warranties of the Company included and incorporated by reference in this
Agreement and the Supplemental Remarketing Agreement or in certificates of any
officer of the Company or any of its subsidiaries delivered pursuant to the
provisions included or incorporated by reference in this Agreement or the
Supplemental Remarketing Agreement, (vi) the performance by the Company of its
covenants and other obligations included and incorporated by reference in this
Agreement and the Supplemental Remarketing Agreement, and (vii) the satisfaction
of the other conditions set forth and incorporated by reference in this
Agreement and the Supplemental Remarketing Agreement.
(b) If at any time during the term of this Agreement, any Indenture Event
of Default or event that with the passage of time or the giving of notice or
both would become an Indenture Event of Default has occurred and is continuing
under the Indenture, then the obligations and duties of the Remarketing Agent
and the Reset Agent under this Agreement and the Supplemental Remarketing
Agreement shall be suspended until such default or event has been cured. The
Company will promptly give the Remarketing Agent notice of all such defaults and
events of which the Company is aware.
SECTION 8. TERMINATION OF REMARKETING AGREEMENT. This Agreement shall
terminate as to any Remarketing Agent or Reset Agent which is replaced on the
effective date of its replacement pursuant to Section 4(a) hereof or pursuant to
Section 4(b) hereof. Notwithstanding any such termination, the obligations set
forth in Section 3 hereof shall survive and remain in full force and effect
until all amounts payable under said Section 3 shall have been paid in full. In
addition, each former Remarketing Agent and Reset Agent shall be entitled to the
rights and benefits under Section 10 of this Agreement notwithstanding the
replacement or resignation of such Remarketing Agent or Reset Agent.
SECTION 9. REMARKETING AGENT'S AND RESET AGENT'S PERFORMANCE; DUTY OF CARE.
The duties and obligations of the Remarketing Agent and the Reset Agent shall be
determined solely by the express provisions of this Agreement and, in the case
of the Remarketing Agent, the Supplemental Remarketing Agreement. No implied
covenants or obligations of or against the Remarketing Agent or the Reset Agent
shall be read into this Agreement or the Supplemental Remarketing Agreement. In
the absence of bad faith on the part of the Remarketing Agent or the Reset
Agent, as the case may be, the Remarketing Agent and the Reset Agent each may
conclusively rely upon any document furnished to it which purports to conform to
the requirements of this Agreement or the Supplemental Remarketing Agreement, as
the case may be, as to the truth of the statements expressed therein. Each of
the Remarketing Agent and the Reset Agent shall be protected in acting upon any
document or communication reasonably believed by it to be signed, presented or
made by the proper party or parties. Neither the Remarketing Agent nor the Reset
Agent shall have any obligation to determine whether there is any limitation
under applicable law on the Reset Rate on the Notes or, if there is any such
limitation, the maximum permissible Reset Rate on the Notes, and they shall rely
solely upon written notice from the Company (which the Company agrees to provide
prior to the tenth Business Day before May 17, 2004, in the case of the Initial
Remarketing, and prior to the tenth Business Day before Purchase Contract
Settlement Date, in the case of the Secondary Remarketing) as to whether or not
there is any such limitation and, if so, the maximum permissible Reset Rate.
Neither the Remarketing Agent nor the Reset Agent shall incur any liability
under this Agreement or the Supplemental Remarketing Agreement to KCSI or to any
beneficial owner or holder of Notes, or other securities, either in its
individual capacity or as Remarketing Agent or Reset Agent, as the case may be,
for any action or failure to act in connection with the Remarketing or otherwise
in connection with the transactions contemplated by this Agreement or the
Supplemental Remarketing Agreement, except to the extent that such liability is
finally judicially determined by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Remarketing
Agent or the Reset Agent, as the case may be. The provisions of this Section 9
shall survive any termination of this Agreement and shall also continue to apply
to every Remarketing Agent and Reset Agent notwithstanding their resignation or
removal.
SECTION 10. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless the Remarketing Agent, the Reset Agent and their
respective directors, officers, employees, agents, affiliates and each person,
if any, who controls the Remarketing Agent or the Reset Agent within the meaning
of either Section 15 of the Securities Act of 1933, as amended (the "1933 Act"),
or Section 20 of the Securities Exchange Act of 1934, as amended (the "1934
Act") (the Remarketing Agent, the Reset Agent and each such person or entity
being an "Indemnified Party"), as follows:
(i) from and against any and all losses, claims, damages, liabilities
and expenses whatsoever, joint or several, as incurred, to which such
Indemnified Party may become subject under any applicable federal or state
law, or otherwise, and related to, arising out of, or based on (A) the
failure to have an effective Registration Statement (as defined in the
Supplemental Remarketing Agreement) under the 1933 Act relating to the
Notes, as the case may be, if required, or the failure to satisfy the
prospectus delivery requirements of the 1933 Act because the Company failed
to provide the Remarketing Agent with a Prospectus (as defined in the
Supplemental Remarketing Agreement) for delivery, or (B) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereto (including any information
deemed to be a part of the Registration Statement at the time it became
effective pursuant to paragraph (b) of Rule 430A under the 1933 Act, if
applicable), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or (C) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or the
Prospectus, or any amendment or supplement thereto, or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, or (D) any untrue statement or alleged untrue
statement of a material fact contained in any other information (whether
oral or written) or documents (including, without limitation, any documents
incorporated or deemed to be incorporated by reference in any such
information or documents) provided by the Company for use in connection
with the remarketing of the Notes or any of the transactions related
thereto, or (E) any breach by the Company of any of the representations,
warranties or agreements included or incorporated by reference in this
Agreement or the Supplemental Remarketing Agreement, or (F) any failure by
the Company to make or consummate the remarketing of the Notes (including,
without limitation, any Failed Initial Remarketing or Failed Secondary
Remarketing) or the withdrawal, recession, termination, amendment or
extension of the terms of such remarketing, or (G) any failure on the part
of the Company to comply, or any breach by the Company of, any of the
provisions included or incorporated by reference in this Agreement, the
Supplemental Remarketing Agreement, the Purchase Contract Agreement, the
Corporate Units, the Treasury Units, the Pledge Agreement, the Indenture or
the Notes (collectively, the "Operative Documents") or (H) the remarketing
of the Notes, as the case may be, or any other transaction contemplated by
any of the Operative Documents, or the engagement of the Remarketing Agent
or the Reset Agent pursuant to, or the performance by the Remarketing Agent
or the Reset Agent of the respective services contemplated by, this
Agreement or the Supplemental Remarketing Agreement, whether or not the
Initial Remarketing or the Secondary Remarketing or the reset of the
interest rate on the Notes as contemplated herein actually occur, PROVIDED
that the foregoing indemnification will not, as to any Indemnified Person,
apply to losses, claims, damages, liabilities or expenses to the extent
that they are finally judicially determined by a court of competent
jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnified Person;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever related to, arising out of or based on any matter described in
(i) above; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by JPMorgan), incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever related to, arising out or based on
any matter described in (i) above, whether or not such Indemnified Party is
a party and whether or not such claim, action or proceeding is initiated or
brought by or on behalf of the Company to the extent that any such expense
is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that the Company shall not be liable under clause (i)(B),
(i)(C) or (i)(D) to the extent any such loss, claim, damage, liability or
expense arises out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and conformity with written
information furnished to the Company by the Remarketing Agent or the Reset Agent
expressly for use in the Registration Statement (or any amendment thereto) or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or any other documents used in connection with remarketing of the
Notes, as the case may be; PROVIDED FURTHER that with respect to any untrue
statement or omission of a material fact made in any preliminary prospectus, the
indemnity agreement contained in this Section 10(a) shall not inure to the
benefit of the Remarketing Agent to the extent that any such loss, claim, damage
or liability of the Remarketing Agent occurs under the circumstance where it
shall have been determined by a court of competent jurisdiction by final and
nonappealable judgment that (w) the Company had previously furnished copies of
the Prospectus to JPMorgan, (x) delivery of the Prospectus was required to be
made to such person, (y) the untrue statement or omission of a material fact
contained in the preliminary prospectus was corrected in the Prospectus, and (z)
there was not sent or given to such person, at or prior to the written
confirmation of the sale of Securities to such person, a copy of the Prospectus.
The Company agrees that no Indemnified Party shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company or
its respective security holders or creditors relating to or arising out of the
engagement of the Remarketing Agent or the Reset Agent pursuant to, or the
performance by the Remarketing Agent or the Reset Agent of their respective
services contemplated by, this Agreement or the Supplemental Remarketing
Agreement except to the extent that any loss, claim, damage, liability or
expense is found in a final judgment by a court of competent jurisdiction to
have resulted from the wilful misconduct, gross negligence or bad faith of the
Remarketing Agent or the Reset Agent, as the case may be.
The Company agrees that, without JPMorgan's prior written consent, it will
not settle, compromise or consent to the entry of any judgment with respect to
any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any action or claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 10
(whether or not JPMorgan or any other Indemnified Party is an actual or
potential party to such claim, action or proceeding), unless such settlement,
compromise or consent (i) includes an unconditional release of each Indemnified
Party from all liability arising out of such litigation, investigation,
proceeding, action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
Indemnified Party.
(b) If the indemnification provided for in Section 10(a) hereof is for any
reason unavailable to or insufficient to hold harmless an Indemnified Party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then the Company shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such Indemnified
Party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Remarketing
Agent and the Reset Agent on the other hand from the remarketing of the Notes
contemplated hereby or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Remarketing Agent and the Reset
Agent on the other hand in connection with the statements, omissions or other
matters which resulted in such losses, liabilities, claims, damages or expenses,
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Remarketing Agent and the Reset
Agent on the other hand in connection with the remarketing of the Notes
contemplated hereby shall be deemed to be in the same respective proportions as
the aggregate principal amount of the Notes which are or are to be remarketed
bears to the aggregate fees actually received by the Remarketing Agent and the
Reset Agent under Section 3 hereof. The relative fault of the Company on the one
hand and the Remarketing Agent and the Reset Agent on the other hand (i) in the
case of an untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact, shall be determined by reference to,
among other things, whether such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company on the one hand or by the Remarketing
Agent or the Reset Agent on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission and (ii) in the case of any other action or omission shall
be determined by reference to, among other things, whether such action or
omission was taken or omitted to be taken by the Company on the one hand, or by
the Remarketing Agent or the Reset Agent, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to prevent or
correct such action or omission. The Company, the Remarketing Agent and the
Reset Agent agree that it would not be just and equitable if contribution
pursuant to this Section 10(b) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 10(b). The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an Indemnified
Party and referred to above in this Section 10(b) shall be deemed to include any
legal or other expenses incurred by such Indemnified Party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or any
such omission or alleged omission or any other such action or omission;
PROVIDED, HOWEVER, that to the extent permitted by applicable law, in no event
shall the Remarketing Agent or the Reset Agent be required to contribute any
amount which, in the aggregate, exceeds the aggregate fees received by them
under Section 3 of this Agreement. No investigation or failure to investigate by
any Indemnified Party shall impair the foregoing indemnification and
contribution agreement or any rights an Indemnified Party may have. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(c) In the event an Indemnified Party is requested or required to appear as
a witness in any action brought by or on behalf of or against the Company, the
Company agrees to reimburse the Remarketing Agent or the Reset Agent, as the
case may be, for all reasonable expenses, as incurred, which are incurred by the
Remarketing Agent or the Reset Agent, as the case may be, in connection with
such Indemnified Party's appearing and preparing to appear as such a witness,
including, without limitation, the reasonable fees and disbursements of its
legal counsel, and to compensate the Remarketing Agent or the Reset Agent, as
the case may be, in an amount to be mutually agreed upon. In addition, the
Company agrees to compensate the Remarketing Agent or the Reset Agent, as the
case may be, in an amount to be mutually agreed upon per person per day for each
day that an officer, director or employee of the Remarketing Agent or the Reset
Agent, as the case may be, or any of their respective affiliates is involved in
preparation, discovery or testimony pertaining to any litigation, discovery or
investigation in connection with this Agreement or the Supplemental Remarketing
Agreement.
(d) Promptly after receipt by an Indemnified Party of written notice of any
claim or commencement of an action or proceeding with respect to which
indemnification may be sought hereunder, such Indemnified Party will notify the
Company in writing of such claim or of the commencement of such action or
proceeding, but failure so to notify the Company will not relieve the Company
from any liability which it may have to such Indemnified Party under this
indemnification and contribution agreement except and only to the extent the
Company has been materially prejudiced by such failure to give notice, and in
any event will not relieve the Company from any other liability that it may have
to such Indemnified Party. JPMorgan shall have the right to select counsel in
connection with any transaction for which any Indemnified Party may be entitled
to indemnification or contribution hereunder, provided that in no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all Indemnified Parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
(e) Anything herein or in the Supplemental Remarketing Agreement to the
contrary notwithstanding, the provisions of this Section 10, and the rights of
the Remarketing Agent, the Reset Agent and the other Indemnified Parties
hereunder, shall be in addition to, and not in limitation of, any rights or
benefits (including, without limitation, rights to indemnification or
contribution) which the Remarketing Agent, the Reset Agent or any other
Indemnified Party may have under any other instrument or agreement.
SECTION 11. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of laws.
SECTION 12. TERM OF AGREEMENT. (a) Unless otherwise terminated in
accordance with the provisions hereof and except as otherwise provided herein,
this Agreement shall remain in full force and effect from the date hereof until
the first day thereafter on which no Notes are outstanding, or, if earlier, the
Business Day immediately following May 17, 2004, in the case of a Successful
Initial Remarketing, or the Business Day immediately following the Purchase
Contract Settlement Date, in the case of a Successful Secondary Remarketing.
Anything herein to the contrary notwithstanding, the provisions of the last
section of Section 8 hereof and the provisions of Sections 3, 9, 10 and 12(b)
hereof shall survive any termination of this Agreement and remain in full force
and effect.
(b) All representations and warranties included or incorporated by
reference in this Agreement, or the Supplemental Remarketing Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto
or thereto, shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of the Remarketing Agent, the Reset Agent
or any of their controlling persons, or by or on behalf of the Company or the
Purchase Contract Agent, and shall survive the remarketing of the Notes.
Section 13. SUCCESSORS AND ASSIGNS. The rights and obligations of the
Company and the Purchase Contract Agent (both in its capacity as Purchase
Contract Agent and as attorney-in-fact) hereunder may not be assigned or
delegated to any other person without the prior written consent of the
Remarketing Agent and the Reset Agent. The rights and obligations of the
Remarketing Agent and the Reset Agent hereunder may not be assigned or delegated
to any other person without the prior written consent of the Company, except
that the Remarketing Agent shall have the right to appoint additional
remarketing agents as provided herein. This Agreement shall inure to the benefit
of and be binding upon the Company, the Purchase Contract Agent, the Remarketing
Agent and the Reset Agent and their respective successors and assigns and the
other Indemnified Parties (as defined in Section 10 hereof) and the successors,
assigns, heirs and legal representatives of the Indemnified Parties. The terms
"successors" and "assigns" shall not include any purchaser of Securities or
Notes merely because of such purchase.
SECTION 14. HEADINGS. Section headings have been inserted in this Agreement
and the Supplemental Remarketing Agreement as a matter of convenience of
reference only, and it is agreed that such section headings are not a part of
this Agreement or the Supplemental Remarketing Agreement and will not be used in
the interpretation of any provision of this Agreement or the Supplemental
Remarketing Agreement.
SECTION 15. SEVERABILITY. If any provision of this Agreement or the
Supplemental Remarketing Agreement shall be held or deemed to be or shall, in
fact, be invalid, inoperative or unenforceable as applied in any particular case
in any or all jurisdictions because it conflicts with any provisions of any
constitution, statute, rule or public policy or for any other reason, then, to
the extent permitted by law, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstances or jurisdiction, or of rendering any other provision
or provisions of this Agreement or the Supplemental Remarketing Agreement, as
the case may be, invalid, inoperative or unenforceable to any extent whatsoever.
SECTION 16. COUNTERPARTS. This Agreement and the Supplemental Remarketing
Agreement may be executed in counterparts, each of which shall be regarded as an
original and all of which shall constitute one and the same document.
SECTION 17. AMENDMENTS. This Agreement and the Supplemental Remarketing
Agreement may be amended by any instrument in writing signed by the parties
hereto. The Company and the Purchase Contract Agent agree that they will not
enter into, cause or permit any amendment or modification of the Purchase
Contract Agreement, the Indenture, the Pledge Agreement, the Notes, the
Mandatory Convertible Units or any other instruments or agreements relating to
the Notes or the Mandatory Convertible Units which would in any way affect the
rights, duties or obligations of the Remarketing Agent or the Reset Agent
without the prior written consent of the Remarketing Agent or the Reset Agent,
as the case may be.
SECTION 18. NOTICES. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone or telecopy, and confirmed in writing.
All written notices and confirmations of notices by telecommunication shall be
deemed to have been validly given or made when delivered or mailed, registered
or certified mail, return receipt requested and postage prepaid. All such
notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to Kansas City Southern Industries, Inc., 114 West
11th Street, Kansas City, Missouri 64105, Attention: Chief Financial Officer; if
to the Remarketing Agent or Reset Agent, to J.P. Morgan Securities Inc., [ ], [
], at [ ], Attention: [ ], with a copy to [ ], [ ], Attention: [ ]; and if to
the Purchase Contract Agent, to The Bank of New York, ,
-------------------------
or to such other address as any of the above shall specify to the other in
writing.
SECTION 19. INFORMATION. The Company agrees to furnish the Remarketing
Agent and the Reset Agent with such information and documents as the Remarketing
Agent or the Reset Agent may reasonably request in connection with the
transactions contemplated by this Remarketing Agreement and the Supplemental
Remarketing Agreement, and make reasonably available to the Remarketing Agent,
the Reset Agent and any accountant, attorney or other advisor retained by the
Remarketing Agent or the Reset Agent such information that parties would
customarily require in connection with a due diligence investigation conducted
in accordance with applicable securities laws and cause the Company's officers,
directors, employees and accountants to participate in all such discussions and
to supply all such information reasonably requested by any such person in
connection with such investigation.
IN WITNESS WHEREOF, each of the Company, the Purchase Contract Agent and
the Remarketing Agent has caused this Agreement to be executed in its name and
on its behalf by one of its duly authorized signatories as of the date first
above written.
KANSAS CITY SOUTHERN INDUSTRIES, INC.
by
--------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
J.P. MORGAN SECURITIES INC.
by
--------------------------------
Authorized Signatory
THE BANK OF NEW YORK,
not individually but solely as Purchase Contract
Agent and as attorney-in-fact for the holders of
the Purchase Contracts
by
--------------------------------
Name:
Title:
EXHIBIT A TO
REMARKETING AGREEMENT
FORM OF SUPPLEMENTAL REMARKETING AGREEMENT
Supplemental Remarketing Agreement dated , among Kansas
------------ ------
City Southern Industries, Inc., a Delaware corporation (the "Company"),
(the "Remarketing Agent"), and , as Purchase
- -------------- -------------
Contract Agent and attorney-in-fact for the Holders of the Purchase Contracts
(as such terms are defined in the Purchase Contract Agreement referred to in
Schedule I hereto)
NOW, THEREFORE, for and in consideration of the covenants herein made, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used and not defined in this Agreement
shall have the meanings assigned to them in the Remarketing Agreement dated as
of , 2001 (the "Remarketing Agreement") among the Company, the
------------
Purchase Contract Agent and J.P. Morgan Securities Inc., or, if not defined in
the Remarketing Agreement, the meanings assigned to them in the Purchase
Contract Agreement (as defined in Schedule I hereto).
2. REGISTRATION STATEMENT AND PROSPECTUS. [The Company has filed with the
Securities and Exchange Commission, and there has become effective, a
registration statement on Form S-3, including a prospectus, relating to the
securities (as such term is defined on Schedule I hereto). Such Registration
Statement, as amended, and including the information deemed to be a part thereof
pursuant to Rule 430A under the Securities Act of 1933, as amended (the "1933
Act"), and the documents incorporated or deemed to be incorporated by reference
therein, are hereinafter called, collectively, the "Registration Statement";
[the related preliminary prospectus dated , including the documents
------------
incorporated or deemed to be incorporated by reference therein, [and preliminary
prospectus supplemented dated ] are hereinafter called,
------------
[collectively] the "preliminary prospectus";] and the related prospectus dated,
including the documents incorporated or deemed to be incorporated by reference
therein, [and prospectus supplement dated ] are hereinafter called,
----------
[collectively,] the "Prospectus." The Company has provided copies of the
Registration Statement [,the preliminary prospectus] and the Prospectus to the
Remarketing Agent, and hereby consents to the use of the [preliminary
prospectus] and the Prospectus in connection with the remarketing of the
Securities.] [IN THE EVENT THAT A REGISTRATION STATEMENT IS NOT REQUIRED, INSERT
THE FOLLOWING: The Company has provided to the Remarketing Agent, for use in
connection with remarketing of the Securities (as such term is defined on
Schedule I hereto), a [preliminary remarketing memorandum and] remarketing
memorandum and [describe other materials, if any]. Such remarketing memorandum
(including the documents incorporated or deemed to be incorporated by reference
therein, [and] [describe other materials] are hereinafter called, collectively,
the "Prospectus," [and such preliminary marketing memorandum (including the
documents incorporated or deemed to be incorporated by reference therein) is
hereinafter called a "preliminary prospectus")]. The Company hereby consents to
the use of the Prospectus [and the preliminary prospectus] in connection with
the remarketing of the Securities]. All references in this Agreement to
amendments or supplements to the [Registration Statement] [, the preliminary
prospectus] or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act"), which is incorporated or deemed to be incorporated by reference in the
Registration Statement [, the preliminary prospectus] or the Prospectus, as the
case may be.
3. PROVISIONS INCORPORATED BY REFERENCE. (a) Subject to Section 3(b), the
provisions of the Underwriting Agreement (other than Section 2, Section 3,
Section 4, Section 7, Section 8 and Section 9 thereof) are incorporated herein
by reference, mutatis mutandis, and the Company hereby makes the representations
and warranties, and agrees to comply with the covenants and obligations, set
forth in the provisions of the Underwriting Agreement incorporated by reference
herein, as modified by the provisions of Section 3(b) hereof.
(b) With respect to the provisions of the Underwriting Agreement
incorporated herein, for the purposes hereof, (i) all references therein to the
"Underwriter" or "Underwriters" shall be deemed to refer to the Remarketing
Agent and all references to the "Representative" or the "Representatives" shall
be deemed to refer to [ ], ("[ ]"); (ii) all references therein to the
"Securities" or "Initial Securities" shall be deemed to refer to the Securities
as defined herein; (iii) all references therein to the "Closing Date" shall be
deemed to refer to the Remarketing Closing Date specified in Schedule I hereto;
(iv) all references therein to the ["Registration Statement"] [, the
"Preliminary Final Prospectus"] or the "Final Prospectus" shall be deemed to
refer to the [Registration Statement][, the preliminary prospectus] and the
Prospectus, respectively, as defined herein; (v) all references therein to this
"Agreement," the "Underwriting Agreement," "hereof," "herein" and all references
of similar import, shall be deemed to mean and refer to this Supplemental
Remarketing Agreement; (vi) all references therein to "the date hereof," "the
date of this Agreement" and all similar references shall be deemed to refer to
the date of this Supplemental Remarketing Agreement; (vii) all references
therein to any "settlement date" shall be disregarded; and (viii) [other
changes].]
4. REMARKETING. Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth or incorporated by reference
herein and in the Remarketing Agreement, the Remarketing Agent agrees to use its
commercially reasonable best efforts to remarket, in the manner set forth in
Section 2(b) of the Remarketing Agreement, the aggregate principal amount, as
the case may be, of Securities set forth in Schedule I hereto at a purchase
price not less than 100% of the [Minimum Initial Remarketing Price] [aggregate
principal amount of the Securities]. In connection therewith, the registered
holder or holders thereof agree, in the manner specified in Section 5 hereof, to
pay to the Remarketing Agent a Remarketing Fee equal to an amount not exceeding
25 basis points (0.25%) of [the Minimum Initial Remarketing Price] [such
aggregate principal amount,] payable by deduction from any amount received in
connection from such [Initial][Secondary] Remarketing in excess of the [Minimum
Initial Remarketing Price] [aggregate principal amount of the Securities]. The
right of each holder of Securities to have Securities tendered for purchase
shall be limited to the extent set forth in the last sentence of Section 2(b) of
the Remarketing Agreement (which is incorporated by reference herein). As more
fully provided in Section 2(c) of the Remarketing Agreement (which is
incorporated by reference herein), the Remarketing Agent is not obligated to
purchase any Securities in the remarketing or otherwise, and neither the Sponsor
nor the Remarketing Agent shall be obligated in any case to provide funds to
make payment upon tender of Securities for remarketing.
5. DELIVERY AND PAYMENT. Delivery of payment for the remarketed Securities
by the purchasers thereof identified by the Remarketing Agent and payment of the
Remarketing Fee shall be made on the Remarketing Closing Date at the location
and time specified in Schedule I hereto (or such later date not later than five
Business Days after such date as the Remarketing Agent shall designate), which
date and time may be postponed by agreement between the Remarketing Agent and
the Company. Delivery of the remarketed Securities and payment of the
Remarketing Fee shall be made to the Remarketing Agent against payment by the
respective purchasers of the remarketed Securities of the consideration therefor
as specified herein, which consideration shall be paid to the Collateral Agent
for the account of the persons entitled thereto by certified or official bank
check or checks drawn on or by a New York Clearing House bank and payable in
immediately available funds or in immediately available funds by wire transfer
to an account or accounts designated by the Collateral Agent.
If the Securities are not represented by a Global Security held by or on
behalf of The Depositary Trust Company, certificates for the Securities shall be
registered in such names and denominations as the Remarketing Agent may request
not less than two full Business Days in advance of the Remarketing Closing Date,
and the Company, the Collateral Agent and the registered holder or holders
thereof agree to have such certificates available for inspection, packaging and
checking by the Remarketing Agent in New York, New York not later than 1:00 p.m.
on the Business Day prior to the Remarketing Closing Date.
6. NOTICES. Unless otherwise specified, any notices, requests, consents or
other communications given or made hereunder or pursuant hereto shall be made in
writing or transmitted by any standard form of telecommunication, including
telephone or telecopy, and confirmed in writing. All written notices and
confirmations of notices by telecommunication shall be deemed to have been
validly given or made when delivered or mailed, registered or certified mail,
return receipt requested and postage prepaid. All such notices, requests,
consents or other communications shall be addressed as follows: if to the
Company, to Kansas City Southern Industries, Inc., 114 West 11th Street, Kansas
City, Missouri, 64105, Attention: [Chief Financial Officer]; if to the
Remarketing Agent, to , at , Attention: ; with a copy to
----- ------- ------
, , Attention: ; and if to the Purchase Contract Agent,
- --------- --------- ------
to , , or to such other address as any of the
------------- -----------------
above shall specify to the other in writing.
7. CONDITIONS TO OBLIGATIONS OF REMARKETING AGENT. Anything herein to the
contrary notwithstanding, the parties hereto agree (and the holders and
beneficial owners of the Securities will be deemed to agree) that the
obligations of the Remarketing Agent under this Agreement and the Remarketing
Agreement are subject to the satisfaction of the conditions set forth in Section
7 of the Remarketing Agreement (which are incorporated herein by reference), and
to the satisfaction, on the Remarketing Closing Date, of the conditions
incorporated by reference herein from Section 6 of the Underwriting Agreement as
modified by Section 3(b) hereof (including, without limitation, the delivery of
opinions of counsel, officers' certificates and accountants' comfort letters in
form and substance satisfactory to the Remarketing Agent, the accuracy as of the
Remarketing Closing Date of the representations and warranties of the Company
included and incorporated by reference herein and the performance by the Company
of its obligations under the Remarketing Agreement and this Agreement as and
when required hereby and thereby). In addition, anything herein or in the
Remarketing Agreement to the contrary notwithstanding, the Remarketing Agreement
and this Agreement may be terminated by the Remarketing Agent, by notice to the
Company at any time prior to the time of settlement on the Remarketing Closing
Date, if any of the events or conditions set forth in Section 10 of the
Underwriting Agreement, as modified by Section 3(b) hereof, shall have occurred
or shall exist.
8. INDEMNITY AND CONTRIBUTION. Anything herein to the contrary
notwithstanding, the Remarketing Agent shall be entitled to indemnity and
contribution on the terms and conditions set forth in the Remarketing Agreement.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the Remarketing Agent.
Very truly yours,
KANSAS CITY SOUTHERN INDUSTRIES, INC.
by
--------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
- ----------------------------------
by
------------------------------
Authorized Signatory
[Add other Remarketing Agents, if any]
- --------------------------------------
not individually but solely as Purchase Contract
Agent and as attorney-in-fact for the holders of
the Purchase Contracts
by
-------------------------
Name:
Title:
SCHEDULE I
Securities subject to the remarketing: % Notes due August 17, 2007 of the
----
Company (the "Securities").
Purchase Contract Agreement, dated as of , 2001 (the "Purchase
------------
Contract Agreement") by and between Kansas City Southern Industries, Inc.,
a Delaware corporation, and The Bank of New York, a New York banking
association.
Pledge Agreement dated as of , 2001 (the "Pledge Agreement") by and
------------
between Kansas City Southern Industries, Inc., a Delaware corporation, The
Chase Manhattan Bank, a New York banking association, and The Bank of New
York, a New York banking association.
Indenture dated as of , 2001 (the "Base Indenture") by and
----------------
between The Kansas City Southern Railway Company, a Delaware corporation,
and The Bank of New York, as trustee.
[Minimum Initial Remarketing Price]
[Aggregate Principal Amount of Securities: $ ]
---------------
Underwriting Agreement, dated , 2001 (the "Underwriting
--------------
Agreement") among Kansas City Southern Industries, Inc., The Kansas City
Southern Railway Company, J.P. Morgan Securities Inc., Morgan Stanley &
Co., Incorporated and Deutsche Banc Alex. Brown Inc.
Remarketing Closing Date, Time and Location: