(..continued)
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8.8% DEBENTURES SUPPLEMENTAL INDENTURE
CONTAINING THE PROPOSED AMENDMENTS
SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") is made as of
the 17th day of December, 1999, between Kansas City Southern Industries, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), and The Chase Manhattan Bank, a New York bank organized and
existing under the laws of the United States of America, trustee (the
"Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee heretofore executed and delivered an
Indenture, dated as of July 1, 1992, (the "Indenture"); and
WHEREAS, the Company's 8.8% Debentures Due July 1, 2022 (the "8.8%
Debentures") are Outstanding Securities issued pursuant to the Indenture; and
WHEREAS, Section 902 of the Indenture provides that with the consent of the
Holders of not less than a majority in principal amount of all Outstanding
Securities of any series affected by such Supplemental Indenture (the "Requisite
Consents"), by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental to the Indenture for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of modifying in any manner the rights of
the Holders of such series of Securities, subject to certain exceptions
specified in Section 902 of the Indenture; and
WHEREAS, the Company has obtained the Requisite Consents from Holders of
the 8.8% Debentures series of Outstanding Securities to amend the Indenture as
set forth below, as well as the Requisite Consents from Holders of each of the
other outstanding series of Outstanding Securities to similarly amend the
Indenture with respect to those series;
WHEREAS, the Board of Directors has, as evidenced by a Board Resolution,
authorized the amendment of the Indenture pursuant to this Supplemental
Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid
supplement to the Indenture according to its terms have been done;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE ONE
WAIVERS OF CERTAIN PROVISIONS OF THE INDENTURE
SECTION 101. Waiver of Applicability of Certain Provisions of the Indenture
to the Separation of the Company's Financial Services Businesses from its
Transportation Businesses. Applicability of Sections 801 and 802 of the
Indenture to a separation (the "Separation") of the Company's financial services
businesses from its transportation businesses, effected through a spin-off (the
"Spin-Off") of the Company's financial services businesses by the distribution
by the Company as a dividend to its stockholders all of the outstanding common
stock of Xxxxxxxx Financial, Inc. ("Xxxxxxxx"), a wholly-owned subsidiary to
which the Company transferred the capital stock of its financial services
subsidiaries and other related assets, or effected through any other method of
Separation, is hereby waived. For purposes of this Supplemental Indenture, the
term "Separation" refers to the separation and sale or transfer of KCSI's
financial services businesses, whether in the form of a Spin-Off or otherwise.
As a result of such waiver, any such Separation shall not be deemed a transfer
by the Company of its properties and assets substantially as an entirety under
Section 801 and, no successor Person shall succeed to or be substituted for, or
be allowed to exercise the rights and powers of, the Company under Section 802
of the Indenture as a result of the Separation.
ARTICLE TWO
ELIMINATION OF COVENANT
SECTION 201. Elimination of Section 1006. Section 1006 (Limitation on Liens
on Stock or Indebtedness of Significant Subsidiaries) of the Indenture is hereby
eliminated in its entirety from the Indenture, and shall be of no further force
or effect.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 301. Effectiveness of Supplemental Indenture. Upon the execution
and delivery of this Supplemental Indenture by the Company and the Trustee, the
Indenture shall be supplemented in accordance herewith, and this Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder
of Securities heretofore or hereafter authenticated and delivered under the
Indenture and of any coupon appertaining thereto shall be bound thereby;
provided, however, that this Supplemental Indenture shall become operative only
upon acceptance by the Company of the 8.8% Debentures validly tendered for
purchase, as set forth in the Offer to Purchase and Consent Solicitation
Statement, dated December 6, 1999, as amended or supplemented through the date
hereof.
SECTION 302. Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture and the Securities issued
thereunder shall remain in full force and effect.
SECTION 303. Indenture and Supplemental Indenture Construed Together. This
Supplemental Indenture is an indenture supplemental to the Indenture, and the
Indenture and this Supplemental Indenture shall henceforth be read and construed
together.
SECTION 304. Confirmation and Ratification of Indenture. The Indenture as
supplemented by this Supplemental Indenture and all Securities issued thereunder
are in all respect confirmed and ratified.
SECTION 305. No Issuance of New Securities Required. The Company shall not
be required to prepare and execute, and the Trustee shall not be required to
authenticate and deliver in exchange for outstanding Securities, any new
Securities to conform to this Supplemental Indenture.
SECTION 306. Separability Clause. In case any provision of this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 307. Terms Defined in the Indenture. All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
SECTION 308. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
SECTION 309. No Effect on Other Series. This Supplemental Indenture relates
solely to the 8.8% Debentures and shall have no force or effect with respect to
any other series of Outstanding Securities under the Indenture.
SECTION 310. Successors and Assigns. All covenants and agreements in
this Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 311. Certain Duties and Responsibilities of the Trustee. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee, whether or not
elsewhere herein so provided.
SECTION 312. Governing Law. This Supplemental Indenture shall be governed
by and construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
that are required to be part of this Supplemental Indenture and shall, to the
extent applicable, be governed by such provisions.
SECTION 313. Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall together constitute but one and the
same Supplemental Indenture.
SECTION 214. Trustee Not Responsible for Recitals. The recitals herein
contained are made by the Company and not by the Trustee, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to be duly executed and attested, all as of the date and year first above
written.
KANSAS CITY SOUTHERN INDUSTRIES, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
Title: Vice President & Treasurer
Attest:
/s/ Xxxxxx X. Xxxxxx
Title: Asst. Secretary
THE CHASE MANHATTAN BANK
Trustee
By: /s/ X. Xxxxxxxx
Title: Assistant Vice President
Attest:
/s/ X. Xxxxxxxxx
Title: Trust Officer
