Dated as of December 9, 2015 Third Supplemental Indenture among Kansas City Southern, as Issuer Each of theGuarantors Party Hereto and U.S. Bank National Association, as Trustee 3.85% Senior Notes due2023
Exhibit 4.4
Dated as of December 9, 2015
Third Supplemental Indenture
among
Kansas City Southern,
as Issuer
Each of the Guarantors Party Hereto
and
U.S. Bank National Association,
as Trustee
3.85% Senior Notes due 2023
THIRD SUPPLEMENTAL INDENTURE (the Third Supplemental Indenture), dated as of December 9, 2015, among KANSAS CITY SOUTHERN, a Delaware corporation (the Issuer), the guarantors party hereto and U.S. BANK NATIONAL ASSOCIATION, a national banking association duly incorporated and existing under the laws of the United States of America, as Trustee (together with its successors and assigns, in such capacity, the Trustee).
W I T N E S S E T H :
WHEREAS, the Issuer, the guarantors party hereto and the Trustee have heretofore executed and delivered an Indenture, dated as of December 9, 2015 (the Original Indenture and, as hereby supplemented, the Indenture), providing for the issuance from time to time of one or more series of the Issuers Securities;
WHEREAS, pursuant to the terms of the Indenture, the Issuer desires to provide for the establishment of a series of Securities to be designated as the 3.85% Senior Notes due 2023 (herein referred to as the 3.85% Senior Notes), the form and substance of the 3.85% Senior Notes and the terms, provisions and conditions thereof to be set forth as provided in the Original Indenture and this Third Supplemental Indenture;
WHEREAS, Section 11.01(h) of the Original Indenture provides that the Issuer and the Trustee may provide for the issuance of additional Securities in accordance with the Original Indenture;
WHEREAS, Section 2.01 of the Original Indenture provides that various matters with respect to any series of Securities issued under the Indenture may be established in a supplemental indenture to the Original Indenture; and
WHEREAS, all acts and things necessary to make this Third Supplemental Indenture, when duly executed and delivered, a valid and binding instrument in accordance with its terms and for the purposes herein expressed, have been done and performed; and the execution and delivery of this Third Supplemental Indenture have been in all respects duly authorized.
NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained and intending to be legally bound, the parties to this Third Supplemental Indenture hereby agree as follows:
ARTICLE I
RELATION TO INDENTURE; ADDITIONAL DEFINITIONS
Section 1.01 Relation to Indenture. This Third Supplemental Indenture constitutes an integral part of the Indenture.
Section 1.02 Additional Definitions. For all purposes of this Third Supplemental Indenture, capitalized terms used herein shall have the respective meanings specified below or, if not specified below, shall have the meaning specified in the Original Indenture.
3.85% Senior Notes has the meaning set forth in the second paragraph of the Recitals hereof.
Below Investment Grade Ratings Event means, on any day within the 60-day period (which period shall be extended so long as the rating of the 3.85% Senior Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies) after the earlier of (1) the occurrence of a Change of Control or (2) public notice by the Issuer of the occurrence of a Change of Control or the Issuers intention to effect a Change of Control, that the 3.85% Senior Notes are rated below Investment Grade by two of the three Rating Agencies. Notwithstanding the foregoing, a Below
1
Investment Grade Ratings Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Ratings Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at the Issuers request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the ratings event).
Change of Control means the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person or group (as those terms are used in Section 13(d)(3) of the Exchange Act), other than the Issuer and its Subsidiaries, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the combined voting power of the total Voting Stock of the Issuer or other Voting Stock into which the Issuers Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares.
Change of Control Payment Date has the meaning assigned to it in Section 4.07(c) hereof.
Change of Control Repurchase Event means the occurrence of both a Change of Control and a Below Investment Grade Ratings Event.
Comparable Treasury Issue means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term (as measured from the date of redemption) (Remaining Life) of the 3.85% Senior Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the 3.85% Senior Notes.
Comparable Treasury Price means, with respect to any Redemption Date, the average of the Reference Treasury Dealer Quotations for such Redemption Date.
Consolidated Net Assets means total assets after deducting therefrom all current liabilities as set forth on the most recent publicly filed balance sheet of the Issuer and its consolidated subsidiaries and computed in accordance with generally accepted accounting principles.
Existing KCSM Notes means any Floating Rate Senior Notes due 2016, 2.35% Senior Notes due 2020 and 3.00% Senior Notes due 2023, each issued by KCSM.
Global Note means a Security evidencing all or part of the 3.85% Senior Notes, substantially in the form attached as Exhibit A.
Guarantors means each subsidiary of the Issuer that execute a Note Guarantee, and its successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of the Indenture.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the Issuer.
Investment Grade means a rating of Baa3 or better by Moodys (or its equivalent under any successor rating categories of Moodys), a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P), a rating of BBB- or better by Fitch (or its equivalent under any successor rating categories of Fitch) and the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Issuer.
Interest Payment Dates means May 15 and November 15 of each year, or if any such day is not a Business Day, the next succeeding Business Day, until maturity, beginning on May 15, 2016.
Issue Date means December 9, 2015.
Maturity Date has the meaning set forth in Section 2.03 hereof.
Note Guarantee means each Guarantee of the obligations with respect to the 3.85% Senior Notes issued by a Person pursuant to the terms of the Indenture.
Original Indenture has the meaning set forth in the first paragraph of the Recitals hereof.
Rating Agency means (1) each of Moodys, S&P and Fitch; and (2) if any of Moodys, S&P or Fitch ceases to rate the 3.85% Senior Notes or fails to make a rating of the 3.85% Senior Notes publicly available for reasons outside of the Issuers control, a nationally recognized statistical rating organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Issuer (as certified by a resolution of the Issuers board of directors) as a replacement agency for Moodys, S&P or Fitch, or all of them, as the case may be, with respect to the 3.85% Senior Notes.
Reference Treasury Dealer means each of Citigroup Global Markets Inc., J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC (or their respective affiliates that are primary Government Securities dealers) and their respective successors; provided, however, that if any Reference Treasury Dealer is not at the applicable time a primary Government Securities dealer (a Primary Treasury Dealer), the Issuer shall substitute therefor another Primary Treasury Dealer selected by it.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue for the 3.85% Senior Notes (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m. New York City time on the third Business Day preceding such Redemption Date.
Treasury Rate means, on any Redemption Date, (i) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated H.15(519) or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption Treasury Constant Maturities, for the maturity corresponding to the applicable Comparable Treasury Issue (if no maturity is within three months before or after the Remaining Life, yields for the two published maturities most closely corresponding to such Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month) or (ii) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the related Comparable Treasury Issue, calculated using a price for that Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be calculated on the third Business Day preceding the Redemption Date.
All references herein to Articles, Sections or Exhibits, unless otherwise specified, refer to the corresponding Articles, Sections or Exhibits of this Third Supplemental Indenture. The terms herein, hereof, hereunder and other words of similar import refer to this Third Supplemental Indenture.
ARTICLE II
THE SERIES OF NOTES
Section 2.01 Title of the Notes. The 3.85% Senior Notes shall be designated as the 3.85% Senior Notes due 2023.
Section 2.02 No Limitation on Aggregate Principal Amount. There shall be no limitation on the aggregate principal amount of 3.85% Senior Notes that may be outstanding.
Section 2.03 Stated Maturity. The Stated Maturity of the 3.85% Senior Notes shall be November 15, 2023 (the Maturity Date).
Section 2.04 Interest and Interest Rate. (a) The 3.85% Senior Notes shall bear interest at the rate of 3.85% per annum, and interest will accrue from the most recent Interest Payment Date on which interest has been paid or, if no interest has been paid, from and including the Issue Date. Such interest shall be payable semiannually in arrears, on the Interest Payment Dates. Interest on the 3.85% Senior Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months. Interest accrued on the 3.85% Senior Notes from the last Interest Payment Date before the Maturity Date shall be payable on the Maturity Date.
(b) The interest so payable on any Interest Payment Date shall be paid to the Persons in whose names the 3.85% Senior Notes are registered at the close of business on the record date for such Interest Payment Date, being the immediately preceding May 1 and November 1, as the case may be.
Section 2.05 Place of Payment. The place or places where the principal of and interest on the 3.85% Senior Notes shall be payable is the office or agency of the Issuer maintained for such purpose, which shall initially be the Corporate Trust Office of the Trustee, and any other place or places designated by the Issuer pursuant to the Indenture; provided that while the 3.85% Senior Notes are represented by one or more Global Securities registered in the name of the Depositary, or its nominee, the Issuer will cause payments of principal and interest on such Global Securities to be made to the Depositary or its nominee, as the case may be, by wire transfer to the extent, in the funds and in the manner required by agreements with, or regulations or procedures prescribed from time to time by the Depositary or its nominee, and otherwise in accordance with such agreements, regulations or procedures.
Section 2.06 Place of Registration or Exchange. The place where the Holders of the 3.85% Senior Notes may present the 3.85% Senior Notes for registration of transfer or exchange and may make notices and demands to or upon the Issuer in respect of the 3.85% Senior Notes shall be the Corporate Trust Office of the Trustee.
Section 2.07 Global Notes. (a) The 3.85% Senior Notes shall be issuable in whole or in part in the form of one or more Global Notes in definitive, book-entry form, without interest coupons. The Global Note shall be deposited on the Issue Date with, or on behalf of, the Depositary.
(b) The Depository Trust Company shall initially serve as Depositary with respect to the Global Note. Such Global Note shall bear the legend set forth in the form attached as Exhibit A.
Section 2.08 Form of Securities. The Global Note shall be substantially in the form attached as Exhibit A.
Section 2.09 Additional 3.85% Senior Notes. The Issuer may issue additional 3.85% Senior Notes under the Indenture. Each of the 3.85% Senior Notes issued on the Issue Date and any additional 3.85% Senior Notes subsequently issued shall each be treated as a single class for all purposes under the Indenture, unless otherwise provided in the Indenture; provided, however, that any additional 3.85% Senior Notes that are not fungible with existing 3.85%
Senior Notes for U.S. federal income tax purposes will have a separate CUSIP, ISIN and other identifying number from the existing 3.85% Senior Notes. Unless the context otherwise requires, for all purposes of the Indenture, references to the 3.85% Senior Notes include any additional 3.85% Senior Notes actually issued.
ARTICLE III
REDEMPTION OF THE 3.85% SENIOR NOTES
Section 3.01 Optional Redemption. (a) Prior to August 15, 2023 (the date that is three months prior to the Maturity Date), the 3.85% Senior Notes will be redeemable in whole or in part at any time and from time to time, at the Issuers option, at a redemption price equal to the greater of:
(i) 100% of the principal amount of the 3.85% Senior Notes to be redeemed and
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the 3.85% Senior Notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the then-current Treasury Rate, plus 20 basis points;
plus accrued interest to but excluding the Redemption Date.
(b) On or after August 15, 2023 (the date that is three months prior to the Maturity Date), the 3.85% Senior Notes will be redeemable in whole or in part at any time and from time to time, at the Issuers option, at a redemption price equal to 100% of the principal amount of the 3.85% Senior Notes to be redeemed plus accrued interest to but excluding the Redemption Date.
(c) Upon completion of the Exchange Offer, the Issuer may redeem 3.85% Senior Notes which are not exchanged in the Exchange Offer in an amount up to 2.0% of the original aggregate principal amount of the 3.85% Senior Notes issued at a Redemption Price of 100% of their principal amount plus accrued interest thereon to but excluding the Redemption Date.
(d) Any redemption pursuant to this Section 3.01 shall be made pursuant to the provisions of Sections 3.01 through 3.07 of the Original Indenture; provided, however, that if less than all of the 3.85% Senior Notes are to be redeemed at any time, the Trustee (or Registrar if other than the Trustee) will select 3.85% Senior Notes for redemption in compliance with the requirements of the principal national securities exchange, if any, on which the 3.85% Senior Notes are listed, or if the 3.85% Senior Notes are not listed on a national securities exchange, on a pro rata basis, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair and appropriate; provided, that no 3.85% Senior Note of $2,000 in principal amount or less shall be redeemed in part; provided, further, redemption notices may not be mailed less than 3 days prior to a Redemption Date if the notice is issued with respect to 3.85% Senior Notes to be redeemed pursuant to Section 3.01(c).
Section 3.02 Mandatory Redemption; Sinking Fund Obligations. The Issuer shall have no obligation to redeem or purchase any 3.85% Senior Notes pursuant to any Mandatory Sinking Fund Payment.
ARTICLE IV
COVENANTS
Additional Covenants. Article IV of the Original Indenture shall be amended by adding the following new Sections thereto as set forth below for the benefit of the Holders of the 3.85% Senior Notes but no other series of Securities under the Original Indenture, whether now or hereafter issued and outstanding (except as may be provided in a future supplemental indenture to the Original Indenture):
Section 4.06 Limitation on Secured Indebtedness and Indebtedness of Non-Guarantor Subsidiaries. (a) If the Issuer or any of the Issuers Significant Subsidiaries that is a Guarantor creates or permits any lien of any kind upon (1) any stock or indebtedness, whether owned on the Issue Date or thereafter acquired, of any of the Issuers Significant Subsidiaries that is a Guarantor or (2) any indebtedness, whether owned on the Issue Date or thereafter acquired, of the Issuer or any of the Issuers Significant Subsidiaries that is a Guarantor, in each case, to secure any Debt (other than the 3.85% Senior Notes) of the Issuer, any of the Issuers Subsidiaries or any other person, the Issuer will cause the outstanding 3.85% Senior Notes to be secured equally and ratably with that Debt, unless the aggregate principal amount of all such secured Debt then outstanding (together with any Debt outstanding under clauses (i), (iii), (iv) and (v) of Section 4.06(b)) would not exceed 10.0% of the Issuers Consolidated Net Assets. Subject to Section 4.06(b), this Section 4.06 does not (i) restrict any other property of the Issuer or its Subsidiaries or (ii) prohibit the sale by the Issuer or any of its Subsidiaries of any stock or indebtedness of any Subsidiary, including any Significant Subsidiary.
(b) The Issuer shall not permit any of its Subsidiaries that is not a Guarantor to incur any Debt, except:
(i) Debt with a final maturity of not more than 365 days;
(ii) intercompany Debt owed to the Issuer or any of its Subsidiaries;
(iii) Debt of any joint venture to which the Issuer or any of its Subsidiaries is a party;
(iv) any Existing KCSM Notes and any Secured Debt of any Subsidiary of the Issuer that is not a Guarantor, in each case, outstanding on the Issue Date; and
(v) Debt not otherwise permitted by this Section 4.06(b) in an aggregate principal amount, at any one time outstanding, not to exceed $150.0 million less the aggregate principal amount of any Existing KCSM Notes outstanding at the time of such incurrence (but not less than $0);
provided that, the limitations set forth in this Section 4.06(b) shall not apply to Meridian Speedway, LLC.
Section 4.07 Offer to Repurchase Upon Change of Control Repurchase Event.
(a) If a Change of Control Repurchase Event occurs, the Issuer will be required to make an offer to each Holder of the 3.85% Senior Notes to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holders 3.85% Senior Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of the 3.85% Senior Notes repurchased plus accrued interest, if any, to but excluding the date of repurchase. Within 30 days following a Change of Control Repurchase Event or, at the Issuers option, prior to a Change of Control, but after the public announcement of such Change of Control, the Issuer shall mail to each Holder of the 3.85% Senior Notes, with a copy to the Trustee, a notice:
(i) describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event;
(ii) offering to repurchase the 3.85% Senior Notes;
(iii) setting forth the payment date for the repurchase of the 3.85% Senior Notes, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed;
(iv) if mailed prior to the date of consummation of the Change of Control, stating that the offer to purchase is conditioned on a Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice;
(v) stating that any 3.85% Senior Note not tendered will continue to accrue interest;
(vi) stating that, unless the Issuer defaults in the payment of the repurchase price, all 3.85% Senior Notes accepted for payment pursuant to the repurchase offer will cease to accrue interest after the payment date specified in the notice; and
(vii) specifying the procedure for tendering 3.85% Senior Notes.
(b) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the 3.85% Senior Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.07, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Indenture by virtue of such conflict.
(c) On the repurchase date following a Change of Control Repurchase Event (the Change of Control Payment Date), the Issuer will, to the extent lawful:
(i) accept for payment all 3.85% Senior Notes or portions of 3.85% Senior Notes properly tendered pursuant to the Issuers offer;
(ii) deposit with the Paying Agent an amount equal to the aggregate purchase price in respect of all 3.85% Senior Notes or portions of 3.85% Senior Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the 3.85% Senior Notes properly accepted together with an Officers Certificate stating the aggregate principal amount of 3.85% Senior Notes being purchased by the Issuer.
(d) The Paying Agent will promptly mail to each Holder of 3.85% Senior Notes properly tendered the purchase price for the 3.85% Senior Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder of 3.85% Senior Notes a new 3.85% Senior Note equal in principal amount to any unpurchased portion of any 3.85% Senior Notes surrendered; provided that each new 3.85% Senior Note will be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(e) The Issuer will not be required to make an offer to repurchase the 3.85% Senior Notes upon a Change of Control Repurchase Event if (i) a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer set forth in the Indenture and such third party purchases all 3.85% Senior Notes properly tendered and not withdrawn under its offer or (ii) a notice of redemption for all outstanding 3.85% Senior Notes has been given pursuant to Section 3.03 of the Original Indenture.
Section 4.08 Additional Guarantors. The Issuer shall cause each Domestic Subsidiary that guarantees the Credit Agreement or any other Debt of the Issuer or any of the Issuers Significant Subsidiaries that is a Guarantor to become a Guarantor and execute a supplemental indenture and deliver an Opinion of Counsel satisfactory to the Trustee within 30 days of becoming a Guarantor of such Debt; provided that, for avoidance of doubt, none of KCSM or any other Subsidiary of the Issuer that is not a Domestic Subsidiary shall be required to become a Guarantor.
Section 4.09 Reports. (a) Whether or not the Issuer is required to file reports with the Commission, the Issuer shall file with the Commission all such reports and other information when and as the Issuer would be required to file with the Commission by Sections 13(a) or 15(d) under the Exchange Act if the Issuer were subject thereto, unless the Commission does not permit such filings, in which case the Issuer shall provide such reports and other information to the Trustee (within the same time periods that would be applicable if the Issuer were required and permitted to file reports with the Commission) and instruct the Trustee to mail such reports and other information to Holders at their addresses set forth on the Note Register. The Issuer shall supply the Trustee and each Holder of 3.85% Senior Notes or shall supply to the Trustee for forwarding to each such Holder, without cost to such Holder, copies of such reports and other information. Notwithstanding the foregoing sentence, the Trustee and each Holder 3.85% Senior Notes shall be deemed to have been supplied the foregoing reports and other information at the time the Trustee or such Holder may electronically access such reports and other information by means of the Commissions homepage on the internet or at the Issuer homepage on the internet.
(b) For so long as any Notes remain outstanding, the Issuer will furnish to the Holders of 3.85% Senior Notes, beneficial owners of the 3.85% Senior Notes, bona fide prospective investors, securities analysts and market makers, upon their request, the reports described in clause (a) of this Section 4.09 and any other information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Delivery of the reports and other information described in clause (a) of this Section 4.09 to the Trustee is for informational purposes only and the Trustees receipt of such reports or other information shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 Effect of Covenant Defeasance. Upon the Issuers exercise under Section 8.01 of the Original Indenture of Covenant Defeasance, the Issuer and each of the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 thereof, be released from their obligations under Sections 4.06 and 4.07 hereof with respect to the outstanding 3.85% Senior Notes on and after the date the conditions set forth in Section 8.04 thereof are satisfied, and the 3.85% Senior Notes will thereafter be deemed not outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but will continue to be deemed outstanding for all other purposes hereunder (it being understood that 3.85% Senior Notes will not be deemed outstanding for accounting purposes).
Section 5.02 Counterpart Originals. The Original Indenture, as supplemented by this Third Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed. This Third Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 5.03 Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS THIRD SUPPLEMENTAL INDENTURE AND THE 3.85% SENIOR NOTES.
Section 5.04 TIA Controls. Prior to the effectiveness of the Registration Statement, this Indenture shall incorporate and be governed by the provisions of the TIA that are required to be part of and to govern indentures qualified under the TIA. After the effectiveness of the Registration Statement, this Indenture shall be subject to the provisions of the TIA that are required to be a part of this Indenture and shall be governed by such provisions.
Section 5.05 Severability. In case any provision in this Third Supplemental Indenture or the 3.85% Senior Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 5.06 Trustees Disclaimer. The recitals contained herein shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Third Supplemental Indenture, except that the Trustee represents that it is duly authorized to execute and deliver this Third Supplemental Indenture and perform its obligations hereunder.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the day and year first above written.
KANSAS CITY SOUTHERN, as Issuer | ||||
By: | /s/ Michael W. Upchurch | |||
Name: | Michael W. Upchurch | |||
Title: | Executive Vice President and Chief Financial Officer |
Signature Page to Supplemental Indenture (3.85% Senior Notes due 2023)
THE KANSAS CITY SOUTHERN RAILWAY COMPANY, as a Guarantor | ||||
By: | /s/ Michael W. Cline | |||
Name: | Michael W. Cline | |||
Title: | Vice President and Treasurer | |||
GATEWAY EASTERN RAILWAY COMPANY, as a Guarantor | ||||
By: | /s/ Michael W. Cline | |||
Name: | Michael W. Cline | |||
Title: | Vice President and Treasurer | |||
SOUTHERN DEVELOPMENT COMPANY, as a Guarantor | ||||
By: | /s/ Michael W. Upchurch | |||
Name: | Michael W. Upchurch | |||
Title: | Vice President, Chief Financial Officer and Treasurer | |||
THE KANSAS CITY NORTHERN RAILWAY COMPANY, as a Guarantor | ||||
By: | /s/ Michael W. Cline | |||
Name: | Michael W. Cline | |||
Title: | Vice President and Treasurer | |||
TRANS-SERVE, INC., as a Guarantor | ||||
By: | /s/ Michael W. Cline | |||
Name: | Michael W. Cline | |||
Title: | Vice President and Treasurer | |||
KCS HOLDINGS I, INC., as a Guarantor | ||||
By: | /s/ Michael W. Cline | |||
Name: | Michael W. Cline | |||
Title: | Vice President and Treasurer |
Signature Page to Supplemental Indenture (3.85% Senior Notes due 2023)
KCS VENTURES I, INC., as a Guarantor | ||||
By: | /s/ Michael W. Cline | |||
Name: | Michael W. Cline | |||
Title: | Vice President and Treasurer | |||
SOUTHERN INDUSTRIAL SERVICES, INC., as a Guarantor | ||||
By: | /s/ Michael W. Upchurch | |||
Name: | Michael W. Upchurch | |||
Title: | Vice President, Chief Financial Officer and Treasurer | |||
VEALS, INC., as a Guarantor | ||||
By: | /s/ Michael W. Upchurch | |||
Name: | Michael W. Upchurch | |||
Title: | Vice President, Chief Financial Officer and Treasurer | |||
PABTEX, INC., as a Guarantor | ||||
By: | /s/ Michael W. Upchurch | |||
Name: | Michael W. Upchurch | |||
Title: | Vice President, Chief Financial Officer and Treasurer |
Signature Page to Supplemental Indenture (3.85% Senior Notes due 2023)
U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||||
By: | /s/ Michael M. Hopkins | |||
Name: | Michael M. Hopkins | |||
Title: | Vice President |
Signature Page to Supplemental Indenture (3.85% Senior Notes due 2023)
EXHIBIT A
[FACE OF NOTE]
[Insert the Private Placement Legend, if applicable pursuant to the Indenture]
[Insert the Global Securities Legend, if applicable pursuant to the Indenture]
KANSAS CITY SOUTHERN
3.85% Senior Notes due 2023
CUSIP No.
ISIN No.
No. | $ |
Kansas City Southern, a Delaware corporation (the Issuer, which term includes any successor under the Indenture hereinafter referred to), for value received, promises to pay to Cede & Co., or its registered assigns, the principal sum [of $ ] [as may be increased or decreased as set forth on the Schedule of Exchange of Interests in the Global Note attached hereto] on November 15, 2023.
Interest Payment Dates: May 15 and November 15.
Regular Record Dates: May 1 and November 1.
A-1
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.
Date: | Kansas City Southern | |||||
By: |
| |||||
Name: | ||||||
Title: | ||||||
By: |
| |||||
Name: | ||||||
Title: |
A-2
Trustees Certificate of Authentication
This is one of the 3.85% Senior Notes described in the within-mentioned Indenture.
U.S. Bank National Association, as Trustee | ||
By: |
| |
Name: | ||
Title: |
A-3
[REVERSE SIDE OF NOTE]
Kansas City Southern
3.85% Senior Notes due 2023
1. | Principal and Interest. |
The Issuer will pay the principal of this Note on November 15, 2023.
The Issuer promises to pay interest on the principal amount of this Note on each Interest Payment Date at the rate of 3.85% per annum.
Interest will be payable semiannually (to the holders of record of the 3.85% Senior Notes at the close of business on May 1 or November 1 immediately preceding the Interest Payment Date) on each Interest Payment Date, commencing [May 15, 2016].1
Interest on the 3.85% Senior Notes will accrue from the most recent date on which interest has been paid or, if no interest has been paid, [from December 9, 2015];2 provided that, if there is no existing default in the payment of interest and this Note is authenticated between a Regular Record Date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such Interest Payment Date. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
The Issuer shall pay interest on overdue principal and premium, if any, and interest on overdue installments of interest, to the extent lawful, at the rate per annum borne by the 3.85% Senior Notes to the extent lawful and in accordance with the terms of the Indenture.
2. | Method of Payment. |
The Issuer will pay principal as provided above and interest (except defaulted interest) on the principal amount of the 3.85% Senior Notes as provided above on each Interest Payment Date to the persons who are Holders (as reflected in the Note Register at the close of business on May 1 and November 1 immediately preceding the Interest Payment Date), in each case, even if the 3.85% Senior Note is cancelled on registration of transfer or registration of exchange after such record date; provided that, with respect to the payment of principal, the Issuer will not make payment to the Holder unless this Note is surrendered to a Paying Agent.
The Issuer will pay principal, premium, if any, and, as provided above, interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. However, the Issuer may pay principal, premium, if any, and interest by its check payable in such money. The Issuer may mail an interest check to a Holders registered address (as reflected in the Note Register). If a payment date is a date other than a Business Day at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day and no interest shall accrue for the intervening period.
1 | With respect to Notes issued on the Issue Date. |
2 | With respect to Notes issued on the Issue Date. |
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3. | Paying Agent and Registrar. |
Initially, the Trustee will act as authenticating agent, Paying Agent and Registrar. The Issuer may appoint or change any Paying Agent or Registrar without notice. The Issuer, any Subsidiary or any Affiliate of any of them may act as Paying Agent, Registrar or co-Registrar.
4. | Indenture. |
The Issuer issued the 3.85% Senior Notes under an Indenture dated as of December 9, 2015 (as supplemented by the Third Supplemental Indenture dated as of December 9, 2015, the Indenture), among the Issuer, the guarantors party thereto and U.S. Bank National Association, as trustee (in such capacity, the Trustee), transfer agent, principal paying agent (in such capacity, the Paying Agent) and registrar (in such capacity, the Registrar). Capitalized terms herein are used as defined in the Indenture unless otherwise indicated. The terms of the 3.85% Senior Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. The 3.85% Senior Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture shall control. The 3.85% Senior Notes are general unsecured obligations of the Issuer.
5. | Optional Redemption. |
Prior to August 15, 2023, the 3.85% Senior Notes will be redeemable in whole or in part at any time and from time to time, at the Issuers option, at a Redemption Price equal to the greater of (i) 100% of the principal amount of the 3.85% Senior Notes to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest on the 3.85% Senior Notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at then-current Treasury Rate, plus 20 basis points, plus accrued interest to but excluding the Redemption Date.
On or after August 15, 2023, the 3.85% Senior Notes will be redeemable in whole or in part at any time and from time to time, at the Issuers option, at a Redemption Price equal to 100% of the principal amount of the 3.85% Senior Notes to be redeemed plus accrued interest to but excluding the Redemption Date.
Upon completion of the Exchange Offer, the Issuer may redeem 3.85% Senior Notes which are not exchanged in the Exchange Offer in an amount up to 2.0% of the original aggregate principal amount of the Notes issued at a Redemption Price of 100% of their principal amount plus accrued interest thereon to but excluding the Redemption Date.
6. | Partial Redemption. |
If less than all of the 3.85% Senior Notes are to be redeemed at any time, the Trustee shall select the 3.85% Senior Notes to be redeemed in compliance with the requirements of the principal national securities exchange, if any, on which the 3.85% Senior Notes are listed or, if the 3.85% Senior Notes are not listed on a national securities exchange, pro rata, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair and appropriate; provided that no 3.85% Senior Notes of $2,000 in principal amount or less shall be redeemed in part.
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7. | Notice of Redemption. |
Notice of any redemption pursuant to Section 5 hereof will be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder of 3.85% Senior Notes to be redeemed at his or her last address as it appears in the Note Register; provided, redemption notices may not be mailed less than 3 days prior to a Redemption Date if the notice is issued with respect to 3.85% Senior Notes to be redeemed pursuant to the last paragraph of Section 5 hereof. Any 3.85% Senior Notes in original denominations larger than $2,000 may be redeemed in part. On and after the Redemption Date, interest ceases to accrue and the principal amount shall remain constant (using the principal amount as of the Redemption Date) on 3.85% Senior Notes or portions of 3.85% Senior Notes called for redemption, unless the Issuer defaults in the payment of the Redemption Price.
8. | Repurchase upon Change of Control Repurchase Event. |
Upon the occurrence of any Change of Control Repurchase Event, each Holder shall have the right to require the repurchase of its 3.85% Senior Notes by the Issuer in cash pursuant to the offer described in the Indenture at a purchase price equal to 101% of the principal amount thereof on the date of repurchase plus accrued interest, if any, to, but excluding, the date of repurchase.
A notice of such Change of Control Repurchase Event will be mailed within 30 days after any Change of Control Repurchase Event occurs or, at the Issuers option, prior to the Change of Control, but after public announcement of such Change of Control, to each Holder of the 3.85% Senior Notes with a copy to the Trustee. Any 3.85% Senior Notes in original denominations larger than $2,000 may be sold to the Issuer in part. On and after the Change of Control Payment Date, interest ceases to accrue on 3.85% Senior Notes or portions of 3.85% Senior Notes surrendered for purchase by the Issuer, unless the Issuer defaults in the payment of the repurchase price.
9. | Denominations; Transfer; Exchange. |
The 3.85% Senior Notes are in registered form without coupons in minimum denominations of $2,000 of principal amount and multiples of $1,000 in excess thereof. A Holder may register the transfer or exchange of 3.85% Senior Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not register the transfer or exchange of any 3.85% Senior Notes selected for redemption. Also, it need not register the transfer or exchange of any 3.85% Senior Notes for a period of 15 days before a selection of Notes to be redeemed is made.
10. | Persons Deemed Owners. |
A Holder shall be treated as the owner of a 3.85% Senior Note for all purposes.
11. | Unclaimed Money. |
If money for the payment of principal, premium, if any, or interest remains unclaimed for two years, then, subject to applicable escheat law, the Trustee and the Paying Agent will pay the money back to the Issuer at its request. After that, Holders entitled to the money must look to the Issuer for payment, unless an abandoned property law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease.
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12. | Discharge Prior to Redemption or Maturity. |
The Issuers and the Guarantors obligations pursuant to the Indenture will be discharged, except for obligations pursuant to certain sections thereof, subject to the terms of the Indenture, upon the payment of all the 3.85% Senior Notes or upon the irrevocable deposit with the Trustee of U.S. dollars or Government Securities sufficient to pay when due principal of and interest on the 3.85% Senior Notes to maturity or redemption, as the case may be.
13. | Amendment; Supplement; Waiver. |
Subject to certain exceptions, the Indenture, the 3.85% Senior Notes and the Note Guarantees may be amended or supplemented with the consent of the Holders of a majority in principal amount of the 3.85% Senior Notes then outstanding, and any existing default or compliance with any provision may be waived with the consent of the Holders of a majority in principal amount of the 3.85% Senior Notes then outstanding. Without notice to or the consent of any Holder, the parties thereto may amend or supplement the Indenture, the 3.85% Senior Notes and the Note Guarantees to, among other things, cure any ambiguity, omission, mistake, defect or inconsistency and make any change that does not adversely affect the legal rights of any Holder.
14. | Restrictive Covenants. |
The Indenture imposes certain limitations on the ability of (x) the Issuer and the Guarantors, among other things, to create or permit any lien or merge, consolidate or transfer substantially all of their assets and (y) the Issuer to permit its Subsidiaries that are not Guarantors to incur certain Debt. The Indenture also requires the Issuer to cause each Domestic Subsidiary that guarantees the Credit Agreement or any other Debt of the Issuer or a Significant Subsidiary of the Issuer that is a Guarantor to become a Guarantor of the 3.85% Senior Notes as set forth in the Indenture. Within 90 days after the end of each fiscal year, the Issuer must report to the Trustee on compliance with such covenants.
15. | Successor Persons. |
When a successor person or other entity assumes all the obligations of its predecessor under the 3.85% Senior Notes and the Indenture in accordance with the terms of the Indenture, the predecessor person will be released from those obligations.
16. | Defaults and Remedies. |
The following events constitute Events of Default under the Indenture: (a) default in the payment of principal of (or premium, if any, on) any 3.85% Senior Note when the same becomes due at maturity, upon acceleration, redemption or otherwise; (b) default in the payment of interest on any 3.85% Senior Note when due and such default continues for a period of 30 days; (c) the Issuer or a Guarantor defaults in the performance of any covenant of the Issuer or a Guarantor in the Indenture or under this Note (other than a default specified in clause (a) or (b) above), and such default continues for a period of 90 days after written notice by the Trustee or the Holders of 25% or more in aggregate principal amount of the 3.85% Senior Notes; (d) a court having jurisdiction in the premises enters a decree or order for (i) relief in respect of the Issuer or a Guarantor in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for the Issuer or a Guarantor or for all or substantially all of the property and assets of the Issuer or a Guarantor or (iii) the winding-up or liquidation of the affairs of the Issuer or a Guarantor and, in each case, such decree or order shall remain unstayed and in effect for a period of 30 consecutive days; (e) the Issuer or a Guarantor (i) commences a
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voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law; (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for the Issuer or a Guarantor or for all or substantially all of the property and assets of the Issuer or a Guarantor or (iii) effects any general assignment for the benefit of creditors; (f) any Note Guarantee ceases to be in full force and effect (except as contemplated by the terms of the Indenture) or any Guarantor or Person acting on behalf of such Guarantor denies or disaffirms such Guarantors obligations under the Indenture or any Note Guarantee and such default continues for a period of 10 days after written notice by the Trustee or the Holders of 25% or more in aggregate principal amount of the 3.85% Senior Notes; or (g) (A) the Concession Title shall cease to grant to KCSM the rights provided therein as of the Issue Date and such cessation has had a material adverse effect on the Issuer and its Subsidiaries taken as a whole, (B) (x) the Concession Title shall for any reason be terminated and not reinstated within 30 days or (y) rights provided therein which were originally exclusive to KCSM shall become nonexclusive and the cessation of such exclusivity has had a material adverse effect on the Issuer and its Subsidiaries taken as a whole, or (C) the operations of the Northeast Rail Lines shall be commandeered or repossessed (a requisa) for a period of 90 days or more.
If an Event of Default occurs and is continuing under the Indenture, the Trustee or the Holders of at least 25% in aggregate principal amount of the 3.85% Senior Notes then outstanding, by written notice to the Issuer (and to the Trustee if such notice is given by the Holders), may, and the Trustee at the request of such Holders shall, declare the principal of, premium, if any, and accrued interest on the 3.85% Senior Notes to be immediately due and payable.
Holders may not enforce the Indenture or the 3.85% Senior Notes except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the 3.85% Senior Notes. Subject to certain limitations, Holders of a majority in principal amount of the 3.85% Senior Notes then outstanding may direct the Trustee in its exercise of any trust or power.
17. | Trustee Dealings with Issuer. |
The Trustee under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from and perform services for the Issuer or its Affiliates and may otherwise deal with the Issuer or its Affiliates as if it were not the Trustee.
18. | No Personal Liability of Incorporators, Stockholders, Officers, Directors, or Employees. |
No recourse for the payment of the principal of, premium, if any, or interest on any of the 3.85% Senior Notes issued under the Indenture or for any claim based on the Indenture or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Issuer or any Guarantor in the Indenture, or in any of the 3.85% Senior Notes or the Note Guarantees or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer, director, employee or controlling person of the Issuer, any Guarantor or of any successor Person thereof. Each Holder, by accepting the 3.85% Senior Notes, waives and releases all such liability.
19. | Authentication. |
This Note shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on the other side of this Note.
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20. | Abbreviations. |
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to Kansas City Southern, 427 West 12th Street, Kansas City, MO 64105, Attention: Treasurer.
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
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Please print or typewrite name and address including zip code of assignee | ||||
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the within Note and all rights thereunder, hereby irrevocably constituting and appointing |
attorney to transfer said Note on the books of the Issuer with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES,
OFFSHORE GLOBAL NOTES AND
OFFSHORE PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior to the date which is the earlier of (i) the date of an effective registration statement or (ii) the end of the period referred to in Rule 144 under the Securities Act, the undersigned confirms that without utilizing any general solicitation or general advertising:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Note and the Indenture.
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If none of the foregoing boxes is checked, the Trustee or other Registrar shall not be obligated to register this Note in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 2.11 of the Indenture shall have been satisfied.
Date: |
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NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. |
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigneds foregoing representations in order to claim the exemption from registration provided by Rule 144A.
Date: |
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NOTICE: To be executed by an executive officer |
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Issuer pursuant to Section 4.07 of the Third Supplemental Indenture, check the Box: ¨
If you wish to have a portion of this Note purchased by the Issuer pursuant to Section 4.07 of the Third Supplemental Indenture, state the amount: $
Date: | ||||
Your Signature: |
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(Sign exactly as your name appears on the other side of this Note) |
Signature Guarantee: |
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is $[●]. The following exchanges of a part of this Global Note for an interest in another Global Note or for a Certificated Note, or exchanges of a part of another Global or Certificated Note for an interest in this Global Note, have been made:
Date of Exchange | Amount of decrease in Principal Amount | Amount of increase in Principal Amount of this Global Note | Principal Amount of this Global Note following such decrease or increase | Signature of authorized signatory of Trustee or Custodian | ||||
* | This schedule should be included only if the Note is issued in global form. |
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