Exhibit 4.1
THE KANSAS CITY SOUTHERN RAILWAY COMPANY
8.0% Senior Notes due 2015
UNDERWRITING AGREEMENT
May 27, 2008
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May 27, 2008
To the Managers named in Schedule I hereto
for the Underwriters named in Schedule II hereto
Ladies and Gentlemen:
The
Kansas City Southern
Railway Company , a Missouri corporation (the
"Company") and wholly
owned subsidiary of Kansas City Southern, a Delaware
corporation (the
"Parent"),
proposes
to issue and sell to the several
underwriters named in Schedule II hereto (the "Underwriters"),
for whom you are
acting as managers (the "Managers"), the principal amount of its
debt securities
identified in
Schedule I hereto
(the "Securities"), to be issued under the
indenture specified in
Schedule I hereto (the
"Indenture") among the
Company,
the Parent,
the entities named in Schedule III hereto as guarantors
(collectively, and
together with the Parent, the "Guarantors") and the
Trustee
identified in Schedule I hereto (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the Managers listed in Schedule I hereto,
then
the terms
"Underwriters" and
"Managers" as used herein shall each be deemed to
refer to such firm or firms.
The
Parent has filed with
the Securities
and Exchange Commission (the
"Commission") a registration statement, including a prospectus,
(the file number
of which is set forth in Schedule I hereto) on Form S-3,
relating to
securities
(the "Shelf
Securities"),
including the Securities, to be issued from time to
time by the Parent or the Company. The registration statement as amended to the
date of this Agreement, including the information (if any)
deemed to be part of
the registration statement at the time of effectiveness pursuant to
Rule 430A or
Rule 430B under the Securities Act of 1933, as amended (the
"Securities
Act"),
is hereinafter
referred to as the
"Registration
Statement,"
and the related
prospectus covering
the Shelf Securities
dated May 23, 2008 in
the form first
used to confirm sales of the Securities (or in the form first
made available to
the Underwriters by the Company to meet requests of purchasers
pursuant to Rule
173 under the Securities Act) is hereinafter referred to as the "Basic
Prospectus." The Basic Prospectus, as supplemented by the prospectus
supplement
specifically relating
to the Securities in the form first used to confirm sales
of the Securities (or in the form first made available to the Underwriters by
the Company
to meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is
hereinafter referred
to as the
"Prospectus," and the
term
"preliminary
prospectus" means any
preliminary
form of the
Prospectus.
For
purposes of this Agreement, "free writing prospectus" has the
meaning set forth
in Rule 405 under
the Securities Act, "Time of Sale Prospectus" means the
preliminary prospectus together with the free writing prospectuses,
if any, each
identified in Schedule I hereto, and "broadly available road show"
means a "bona
fide electronic road show" as defined in Rule 433(h)(5) under the
Securities Act
that has been made available without restriction to any person. As used
herein,
the
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terms "Registration
Statement," "Basic Prospectus," "preliminary prospectus,"
"Time of Sale Prospectus" and "Prospectus" shall include the
documents, if any,
incorporated by reference therein. The terms "supplement," "amendment," and
"amend" as used herein with respect to the Registration Statement, the Basic
Prospectus, the Time
of Sale Prospectus,
any preliminary prospectus or free
writing prospectus
shall include all documents subsequently filed by or on
behalf of the
Parent or the Company with the Commission pursuant to the
Securities Exchange
Act of 1934, as
amended (the
"Exchange Act"), that are
deemed to be incorporated by reference therein.
1.
Representations and
Warranties. Each of
the Company and the Guarantors
represents and warrants to and agrees with each of the Underwriters
that, as of
the date hereof and as of the Closing Date (as defined in Section
4):
(a)
The Registration Statement is an automatic shelf registration
statement
as defined in Rule 405 under the Securities Act and the Parent is a
well-known
seasoned issuer (as
defined in Rule 405 under the Securities Act) eligible to
use the Registration
Statement as an automatic shelf registration statement and
neither the Company nor the Guarantors has received notice that the Commission
objects to
the use of the Registration Statement as an automatic shelf
registration
statement. No stop
order suspending the effectiveness of the
Registration Statement
is in effect, and no
proceedings
for such purpose
are
pending before or threatened by the Commission.
(b)
(i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Time of Sale
Prospectus or the
Prospectus complied or
will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each
part of the Registration Statement, when such part became
effective, did not
contain, and each such part, as amended or supplemented,
if
applicable, will not
contain any untrue statement of a material fact or omit to
state a material fact
required to be stated
therein or
necessary to make
the
statements therein not
misleading, (iii) the
Registration Statement
as of the
date hereof does not contain any untrue statement of a material fact or
omit to
state a material fact
required to be stated
therein or
necessary to make
the
statements therein not
misleading,
(iv) the Registration Statement and the
Prospectus comply, and as amended or supplemented, if applicable,
will comply in
all material respects
with the Securities Act and the applicable rules and
regulations of the Commission thereunder, (v) the Time of Sale Prospectus
does
not, and at the time
of each sale of the
Securities
in connection with the
offering when the Prospectus is not yet available to prospective
purchasers and
at the Closing Date, the Time of Sale Prospectus, as then amended or
supplemented by the
Company, if applicable, will not, contain any untrue
statement of a material fact or omit to state a material fact
necessary to make
the statements
therein, in the light of the circumstances under which they
were
made, not misleading, (vi) each broadly available road show, if
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any, when considered together with the Time of Sale Prospectus,
does not contain
any untrue
statement of a material fact or omit to state a material fact
necessary to make the
statements
therein, in the light of the circumstances
under which they were made, not misleading and (vii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a
material fact or omit to state a material fact necessary
to make the statements
therein, in the light
of the circumstances
under which
they were made, not misleading, except that the representations and warranties
set forth in this
paragraph do not apply to (A) statements or omissions in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus based upon
information relating
to any Underwriter
furnished to the Company in writing by
such Underwriter through the Managers expressly for use therein or
(B) that part
of the Registration
Statement that constitutes the Statement of Eligibility
(Form T-1)
under the Trust
Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of the Trustee.
(c)
The Company
is not an "ineligible issuer" in connection with the
offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free
writing prospectus
that the Company is required to file pursuant to Rule 433(d)
under the Securities
Act has been,
or will be, filed with
the Commission
in
accordance with the
requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus
that
the Company has filed, or is required to file, pursuant to Rule
433(d) under the
Securities Act or that
was prepared
by or behalf of or
used or referred to by
the Company
complies or will comply in all material respects with the
requirements of the
Securities Act and the applicable rules and regulations of
the Commission
thereunder. Except for
the free writing
prospectuses, if
any,
identified in
Schedule I hereto,
and electronic road shows, if any, each
furnished to you
before first
use, the Company has not prepared, used or
referred to, and will not, without your prior consent,
not to be unreasonably
withheld, prepare, use or refer to, any free writing
prospectus.
(d)
Each of the Parent
and the Company has been duly incorporated, is
validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own,
lease and operate its
property and to
conduct its business as described in the
Time of Sale
Prospectus and is duly
qualified to transact
business and is in
good standing in each
jurisdiction in which
the conduct of its business or its
ownership or leasing
of property requires
such qualification, except to the
extent that the failure to be so qualified or be in good standing
would not have
a material adverse
effect on the Company,
the Guarantors and their respective
subsidiaries, taken as a whole.
(e)
Each subsidiary
of the Company and the Guarantors has been duly
organized, is validly
existing and in good standing (to the extent applicable)
under
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the laws of the jurisdiction of its organization, has the power and
authority to
own, lease and operate
its property and to conduct its business as described in
the Time of Sale Prospectus and is duly qualified to transact
business and is in
good standing
(to the extent
applicable)
in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such
qualification, except to the extent that the failure to be so
qualified or be in
good standing
(to the extent
applicable)
would not have a
material adverse
effect on the Company, the Guarantors and their respective
subsidiaries,
taken
as a whole;
all of the
issued shares of capital stock of each corporate
subsidiary of the
Company and the Guarantors held by the Company or such
Guarantors, as applicable, have been duly and validly authorized
and issued, are
fully paid and
non-assessable
and are owned
directly or indirectly by the
Company or Guarantor, as applicable, free and clear of all liens,
encumbrances,
equities or claims.
(f)
This Agreement has been duly authorized, executed and delivered by the
Company.
(g)
The authorized capital stock and capitalization of the Company
conforms
as to legal matters to
the description
thereof contained in the Time of Sale
Prospectus.
(h)
The Indenture has been duly qualified under the Trust Indenture Act
and
has been duly
authorized by the Company and each Guarantor and, when executed
and delivered by the Company, the Guarantors and the Trustee, will be a valid
and binding
obligation
of the Company and the Guarantors, enforceable in
accordance with its
terms, subject to
applicable bankruptcy,
insolvency
and
similar laws affecting
creditors' rights generally and equitable principles of
general applicability.
(i)
The Securities
have been duly authorized and, when executed and
authenticated in
accordance with the
provisions of the Indenture and delivered
to and paid
for by the
Underwriters
in accordance with the terms of this
Agreement, will
be valid and binding obligations of the Company and the
Guarantors,
enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency
and similar laws affecting creditors' rights generally
and equitable principles of general applicability, and will be entitled to the
benefits of the Indenture.
(j)
The execution and
delivery by the Company and the Guarantors of, and
the performance
by the Company and the Guarantors of their respective
obligations under,
this Agreement,
the Indenture and the
Securities, and
the
consummation of the transactions contemplated therein have been
duly authorized
by the Company and the Guarantors; the Company and the Guarantors
have all power
and authority to execute, deliver and perform their respective
obligations under
this Agreement, the
Indenture and the Securities; and the execution,
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delivery and
performance by the Company and the Guarantors of their respective
obligations under this Agreement, the Indenture and the Securities
will not (i)
contravene any provision of applicable law or the certificate of incorporation
or by-laws of the Company or the Guarantors or any agreement or
other instrument
binding upon the Company or the Guarantors or any of their
subsidiaries that are
material to the
Company, the
Guarantors
and their subsidiaries, taken as a
whole, (ii) result in an event or condition which gives the holder
of any notes,
debenture, or other
evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of
all or a portion of such indebtedness by the Company,
the Guarantors or any
of
their subsidiaries,
or (iii) contravene,
conflict with or
constitute a breach
of, or default under any judgment, order or decree of any
governmental
body,
agency or court having
jurisdiction over the Company, the Guarantors or any of
their subsidiaries and
their respective
operations, except to
the extent that
such contravention, violation, breach or default described in items
(i) or (iii)
above would not have a material adverse effect on the Company,
the Guarantors
and their subsidiaries, taken as a whole.
(k)
No consent, approval, authorization or order of, or qualification
with,
any governmental
body or agency is
required for the performance by the Company
or the Guarantors of their respective obligations under this Agreement, the
Indenture or the Securities, except such as may be required by the
securities or
Blue Sky laws of the various states in connection with the offer
and sale of the
Securities.
(l)
The Company, the Guarantors and each of their subsidiaries own,
possess
or has obtained all licenses, permits, certificates, consents,
orders, approvals
and other
authorizations from,
and has made all declarations and filings with,
all federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all
courts and other
tribunals, domestic or
foreign, necessary to
own or lease, as the case may be,
and to operate their
properties and to
carry on their business as conducted as
of the date hereof and as described in the Time of Sale
Prospectus,
except to
the extent that the failure to own, possess or obtain such
licenses, permits,
certificates,
consents, orders,
approvals and other
authorizations would
not
have a material
adverse effect on the Company, the Guarantors and their
subsidiaries, taken as
a whole; and neither the Company, the Guarantors nor any
of their subsidiaries
has received any notice of any
proceeding
relating to
revocation or modification of any such license, permit, certificate, consent,
order, approval or other authorization.
(m)
The historical audited
consolidated financial
statements and notes of
the Parent included or
incorporated by reference in the Time of Sale Prospectus
(i) have been prepared in accordance with U.S. generally accepted accounting
principles ("U.S.
GAAP"), (ii) present fairly in all material respects the
financial
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condition, results of
operations and cash flows of the Company, the Guarantors
and each of their
subsidiaries taken as a whole, and (iii) comply as to form in
all material
respects with the applicable accounting requirements of the
Securities Act. No other financial statements are required to be
included in the
Time of Sale Prospectus.
(n)
The Company, the
Guarantors and each of their subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i)
transactions are
executed in accordance
with management's
general or specific
authorizations;
(ii) all transactions are recorded as
necessary to permit
preparation of
financial statements
in U.S. GAAP and to
maintain asset
accountability;
(iii) access to assets is permitted only in
accordance with
management's general
or specific
authorization; and
(iv) the
recorded
accountability for
assets is compared
with the existing assets at
reasonable intervals
and appropriate action is taken with respect to any
differences.
(o)
The Company, the
Guarantors and each of their subsidiaries has filed
all tax returns (foreign, national, local or other) required to be
filed and has
paid all taxes
required to be paid by
them and any other
assessment, fine
or
penalty levied against
them, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is
currently being
contested in good faith.
(p)
There has not occurred any material adverse change, or to the
Company's
knowledge, any
development involving
a prospective material adverse change, in
the condition,
financial or otherwise, or in the earnings, business or
operations of the Company, the Guarantors and their subsidiaries, taken as a
whole, from that set forth in the Time of Sale Prospectus.
(q)
There are no legal or governmental proceedings pending or, to the
Company's knowledge,
threatened to which
the Company, the Guarantors or any of
their subsidiaries is
a party or to which any of the properties of the Company,
the Guarantors
or any of their subsidiaries is subject (i) other than
proceedings that are accurately described in all material
respects in the
Time
of Sale Prospectus and proceedings that would not have a material
adverse effect
on the Company, the
Guarantors and their subsidiaries, taken as a whole, or on
the power or ability of the Company or the Guarantors to perform their
obligations under
this Agreement, the Indenture or the Securities or to
consummate the transactions contemplated by the Time of Sale
Prospectus or (ii)
that are required to be described in the Registration Statement or the
Prospectus and are not
so described;
and there are no
statutes,
regulations,
contracts or
other documents that are required to be described in the
Registration Statement
or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as
required.
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(r)
Each preliminary prospectus filed as part of the Registration
Statement
as originally filed or
as part of any amendment thereto, or filed pursuant to
Rule 424 under
the Securities Act, complied when so filed in all material
respects with the Securities Act and the applicable rules and
regulations of the
Commission thereunder.
(s)
None of the Company
or any of the
Guarantors
is, and after giving
effect to the offering and sale of the Securities and the application of the
proceeds thereof as
described in the
Prospectus none of the
Company or any of
the Guarantors will be, required to register as an "investment
company" as such
term is defined in the Investment Company Act of 1940, as
amended.
(t)
The Company, the Guarantors and their subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local laws
and regulations
relating to the
protection
of human health and safety, the
environment or
hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all
permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective
businesses
and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except, in each case, where
such noncompliance with Environmental Laws, failure to receive
required permits,
licenses or other
approvals or failure to comply with the terms and conditions
of such permits,
licenses or approvals
would not, singly or
in the aggregate,
have a material
adverse effect on the Company, the Guarantors and their
subsidiaries, taken as a whole.
(u)
There are no costs or liabilities associated with Environmental Laws
(including, without
limitation, any
capital or operating expenditures required
for clean-up, closure of properties or compliance with
Environmental Laws or any
permit, license or approval, any related constraints on operating
activities and
any potential
liabilities
to third parties) which would, singly or in the
aggregate, have a
material adverse
effect on the Company,
the Guarantors and
their subsidiaries, taken as a whole.
(v)
No material labor problem or dispute with the employees of the
Company,
the Guarantors or any of their subsidiaries exists or, to the knowledge of
the
Company, the
Guarantors or any of their subsidiaries, is threatened or, to the
knowledge of the Company or the Guarantors, is imminent, and to the
knowledge of
the Company, the
Guarantors and any of their affiliates there is no existing or
imminent labor disturbance by the employees of any of their
respective principal
suppliers, contractors or customers.
(w)
The Company, the
Guarantors and each of their subsidiaries is insured
by insurers of recognized financial responsibility against such
losses and risks
and in such amounts as are prudent and customary for companies engaged in the
same
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or similar businesses; all such policies covering any of their
business, assets,
employees, officers and directors are in full force and effect; the
Company, the
Guarantors and each of
their subsidiaries
is in compliance
with the terms of
such policies and instruments in all material respects,
and there are no
claims
by the Company,
the Guarantors or any of their subsidiaries under any such
policy or instrument as to which any insurance company is denying liability of
defending under a
reservation of rights
clause; and neither
the Company, the
Guarantors nor any of their subsidiaries has any reason to
believe that it will
not be able to renew its existing insurance coverage as and when such
coverage
expires or to obtain similar coverage from similar insurers as
may be necessary
to continue in their businesses.
(x)
No relationship,
direct or indirect,
exists between the Company, the
Guarantors or any of
their subsidiaries
on the one hand,
and the directors,
officers, stockholders, customers or suppliers of the Company, the
Guarantors or
any of their subsidiaries on the other hand, which is required by
the Securities
Act to be described in the Time of Sale Prospectus which is not so
described.
(y)
Neither the Company,
the Guarantors nor any of their subsidiaries or
affiliates, nor any director, officer, or employee, nor, to the
knowledge of the
Company or the
Guarantors, any agent
or representative
of the Company, the
Guarantors or of any of their subsidiaries or affiliates, has taken
or will take
any action in furtherance of an offer, payment, promise to pay, or
authorization
or approval of the payment or giving of money, property,
gifts or anything
else
of value, directly or
indirectly, to any
"government official"
(including any
officer or employee of a government or government-owned or controlled
entity or
of a public
international
organization, or any
person acting in an
official
capacity for or on behalf of any of the foregoing, or any political party or
party official or candidate for political office) to influence official action
or secure an improper
advantage; and the
Company, the Guarantors and their
subsidiaries and
affiliates have conducted their businesses in compliance with
applicable
anti-corruption laws
and have instituted and maintain and will
continue to maintain
policies and
procedures
designed to promote
and achieve
compliance with such
laws and with the
representation and
warranty contained
herein.
(z)
The operations
of the Company, the Guarantors and their domestic
subsidiaries are and
have been conducted
at all times in
material
compliance
with all applicable financial recordkeeping and reporting requirements,
including those of the
Bank Secrecy Act, as amended by Title III of the Uniting
and Strengthening
America by Providing
Appropriate Tools Required to Intercept
and Obstruct
Terrorism Act of 2001 (USA PATRIOT Act), and the applicable
anti-money
laundering statutes
of jurisdictions where the Company, the
Guarantors and their
subsidiaries conduct
business, the rules
and regulations
thereunder and any related or similar rules, regulations or
guidelines,
issued,
administered or
enforced by any governmental agency (collectively, the
"Anti-Money
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Laundering Laws"), and
no action, suit or
proceeding by or before any court or
governmental agency,
authority or body or any arbitrator involving the Company,
the Guarantors
or any of their
subsidiaries
with respect to the Anti-Money
Laundering Laws is
pending or, to the best knowledge of the Company or the
Guarantors, threatened.
(aa)
(i) The Parent
represents that
neither it nor any of its domestic
subsidiaries
(collectively, the
"Entity") or, to the
knowledge of the Entity,
any director, officer,
employee, agent, affiliate or representative of the
Entity, is an individual or entity ("Person") that is, or is owned
or controlled
by a Person that is:
(A) the subject of any sanctions administered or enforced by
the
U.S. Department
of Treasury's Office of Foreign Assets Control
("OFAC") or
other relevant sanctions authority (collectively,
"Sanctions"), nor
(B) located, organized or resident in a country or territory
that
is the subject of Sanctions (including, without limitation,
Burma/Myanmar, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Entity represents and covenants that it will not, directly
or
indirectly, use the
proceeds of the offering, or lend, contribute or
otherwise make
available such
proceeds to any
subsidiary, joint
venture
partner or other Person:
(A) to fund or facilitate any activities or business of or
with
any Person or in any country or territory that, at the time of such
funding or facilitation, is the subject of Sanctions; or
(B) in any other
manner that
will result in a violation of
Sanctions by any Person (including any Person participating in the
offering, whether as underwriter, advisor, investor or
otherwise).
(iii) The Entity
represents and
covenants that it has
not
