(..continued)
21042577\V-1
21042577\V-1
CONFORMED COPY
364-DAY
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of January 11, 2000
among
KANSAS CITY SOUTHERN INDUSTRIES, INC.,
THE LENDERS NAMED HEREIN,
BANK OF AMERICA, N.A., as Documentation Agent
FLEET NATIONAL BANK, as Syndication Agent
and
THE CHASE MANHATTAN BANK,
as Administrative Agent and Swingline Lender,
------------------------------------
CHASE SECURITIES INC., as Advisor, Lead Arranger and Book Manager,
3
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS........................................................1
SECTION 1.01. Defined Terms...................................................1
SECTION 1.02. Terms Generally................................................11
ARTICLE II. THE CREDITS......................................................11
SECTION 2.01. Commitments....................................................11
SECTION 2.02. Loans..........................................................11
SECTION 2.03. Competitive Bid Procedure......................................12
SECTION 2.04. Standby Borrowing Procedure....................................14
SECTION 2.05. Refinancings...................................................14
SECTION 2.06. Fees...........................................................14
SECTION 2.07. Repayment of Loans; Evidence of Debt...........................15
SECTION 2.08. Interest on Loans..............................................15
SECTION 2.09. Default Interest...............................................16
SECTION 2.10. Alternate Rate of Interest.....................................16
SECTION 2.11. Termination and Reduction of Commitments.......................16
SECTION 2.12. Prepayment.....................................................16
SECTION 2.13. Reserve Requirements; Change in Circumstances..................17
SECTION 2.14. Change in Legality.............................................18
SECTION 2.15. Indemnity......................................................18
SECTION 2.16. Pro Rata Treatment.............................................19
SECTION 2.17. Sharing of Setoffs.............................................19
SECTION 2.18. Payments.......................................................19
SECTION 2.19. Taxes..........................................................19
SECTION 2.20. Termination or Assignment of Commitments
Under Certain Circumstances....................................21
SECTION 2.21. Lending Offices and Lender Certificates;
Survival of Indemnity..........................................21
SECTION 2.22. Swingline Loans................................................21
ARTICLE III. REPRESENTATIONS AND WARRANTIES..................................22
SECTION 3.01. Corporate Existence and Standing...............................22
SECTION 3.02. Authorization and Validity.....................................23
SECTION 3.03. No Conflict; Governmental Consent..............................23
SECTION 3.04. Compliance with Laws; Environmental and Safety Matters.........23
SECTION 3.05. Financial Statements...........................................23
SECTION 3.06. No Material Adverse Change.....................................24
SECTION 3.07. Ownership of Properties........................................24
SECTION 3.08. Subsidiaries...................................................24
SECTION 3.09. Litigation; Contingent Obligations.............................24
SECTION 3.10. Material Agreements............................................24
SECTION 3.11. Regulation U...................................................24
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act.....24
SECTION 3.13. Use of Proceeds................................................25
SECTION 3.14. Taxes..........................................................25
SECTION 3.15. Accuracy of Information........................................25
SECTION 3.16. Employee Benefit Plans.........................................25
SECTION 3.17. No Undisclosed Dividend Restrictions...........................25
SECTION 3.18. Year 2000......................................................25
ARTICLE IV. CONDITIONS OF LENDING AND THE AAA AGREEMENT......................25
SECTION 4.01. All Borrowings.................................................25
SECTION 4.02. First Borrowing................................................26
SECTION 4.03. AAA Agreement..................................................26
ARTICLE V. AFFIRMATIVE COVENANTS.............................................26
SECTION 5.01. Conduct of Business and Maintenance of Properties..............27
SECTION 5.02. Insurance......................................................27
SECTION 5.03. Compliance with Laws and Taxes.................................27
SECTION 5.04. Financial Statements, Reports, etc.............................27
SECTION 5.05. Other Notices..................................................28
SECTION 5.06. Access to Properties and Inspections...........................28
SECTION 5.07. Use of Proceeds................................................28
ARTICLE VI. NEGATIVE COVENANTS...............................................28
SECTION 6.01. Indebtedness...................................................29
SECTION 6.02. Liens..........................................................29
SECTION 6.03. Sale and Lease-Back Transactions...............................30
SECTION 6.04. Mergers, Consolidations and Transfers of Assets................30
SECTION 6.05. Transactions with Affiliates...................................30
SECTION 6.06. Certain Other Agreements.......................................31
SECTION 6.07. Certain Financial Covenants....................................31
SECTION 6.08. Margin Stock...................................................31
ARTICLE VII. EVENTS OF DEFAULT...............................................31
ARTICLE VIII. THE AGENT......................................................33
ARTICLE IX. MISCELLANEOUS....................................................34
SECTION 9.01. Notices........................................................34
SECTION 9.02. Survival of Agreement..........................................35
SECTION 9.03. Binding Effect.................................................35
SECTION 9.04. Successors and Assigns.........................................35
SECTION 9.05. Expenses; Indemnity............................................37
SECTION 9.06. Right of Setoff................................................37
SECTION 9.07. Applicable Law.................................................37
SECTION 9.08. Waivers; Amendment.............................................37
SECTION 9.09. Interest Rate Limitation.......................................38
SECTION 9.10. Entire Agreement...............................................38
SECTION 9.11. Waiver of Jury Trial...........................................38
SECTION 9.12. Severability...................................................38
SECTION 9.13. Counterparts...................................................38
SECTION 9.14. Headings.......................................................38
SECTION 9.15. Jurisdiction; Consent to Service of Process....................39
SECTION 9.16. Confidentiality................................................39
SECTION 9.17. AAA Agreement Authorization....................................39
Schedule 2.01 Commitments
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.17 Dividend Restrictions
Schedule 6.01 Indebtedness
Schedule 6.02 Liens
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Form of AAA Agreement
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Opinion of Sonnenschein Nath & Rosenthal
Exhibit E Compliance Certificate
Exhibit F Form of Confidentiality Agreement
Exhibit G Form of Administrative Questionnaire
46
364-DAY COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT dated as of January 11, 2000, among KANSAS
CITY SOUTHERN INDUSTRIES, INC., a Delaware
corporation ("KCSI" or at all times prior to the
Assumption Date (as defined below), the "Borrower"),
the lenders party hereto (the "Lenders"), THE CHASE
MANHATTAN BANK, as Administrative Agent for the
Lenders (in such capacity, the "Agent"), BANK OF
AMERICA, N.A., as Documentation Agent for the
Lenders, and FLEET NATIONAL BANK, as Syndication
Agent for the Lenders.
KCSI proposes to distribute all the issued and outstanding
common stock of Stilwell (such term and each other capitalized term used but not
otherwise defined herein having the meaning assigned to it in Article I) to the
shareholders of KCSI. Prior to the date of the Spin-Off, the rights and
obligations of KCSI under this Agreement will be assigned and delegated to, and
assumed by, Stilwell pursuant to, and in accordance with the terms of, the AAA
Agreement. On the Assumption Date, KCSI will be released from all obligations
hereunder, and Stilwell will be the borrower and the sole obligor hereunder.
Following the Spin-Off, Stilwell may assign and delegate all or a portion of its
rights and obligations hereunder to one or more of its domestic subsidiaries;
provided that such subsidiaries' obligations are guaranteed by Stilwell.
KCSI has requested the Lenders to extend credit in order to
enable it to borrow on a standby revolving credit basis on and after the date
hereof and at any time and from time to time prior to the Assumption Date a
principal amount not in excess of $200,000,000 at any time outstanding. KCSI has
also requested the Lenders to provide a procedure pursuant to which the Lenders
may be invited to bid on an uncommitted basis on short-term borrowings by the
Borrower.
The proceeds of the initial borrowing by KCSI will be used to
repay approximately $125,000,000 of existing indebtedness of KCSI. No borrowings
by KCSI will be permitted after the Assumption Date. Any borrowings by Stilwell
and the Subsidiary Borrowers after the Assumption Date will be used for general
corporate purposes of Stilwell and the Subsidiary Borrowers including, without
limitation, (a) to provide liquidity for a commercial paper program of Stilwell
and (b) the financing of non-hostile acquisitions.
The Lenders are willing to extend such credit to KCSI on the
terms and subject to the conditions herein set forth. Accordingly, KCSI, the
Lenders and the Agent agree as follows:
ARTICLE I. DEFINITIONSARTICLE I. DEFINITIONS
SECTION 1.01. Defined TermsSECTION 1.01. Defined Terms.
As used in this Agreement, the
------------------------------------------
following terms shall have the meanings specified below:
"AAA Agreement" shall mean the Assignment, Assumption and
Amendment Agreement in the form of Exhibit B entered into by KCSI, Stilwell and
the Agent, on behalf of the Lenders, prior to the Spin-Off Date.
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Standby Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Adjusted LIBO Rate" shall mean, with respect to any
Eurodollar Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the product of
(a) the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire supplied by the Agent in the form of Exhibit G.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
person specified and in any case shall include, when used with respect to the
Borrower or any Subsidiary, any joint venture in which the Borrower or such
Subsidiary holds an equity interest.
"Agent's Fees" shall have the meaning assigned to such term in
Section 2.06(b).
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof, "Prime Rate" shall mean the rate
of interest per annum publicly announced from time to time by the Agent as its
prime rate in effect at its principal office in New York City; the Prime Rate is
not intended to be the lowest rate of interest charged by the Agent in
connection with extensions of credit to debtors; each change in the Prime Rate
shall be effective on the date such change is publicly announced as effective.
"Base CD Rate" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) Statutory Reserves and (b) the Assessment Rate.
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Agent from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it. "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for the day of
such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it. If for any reason the Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Base CD Rate or the Federal Funds Effective Rate
or both for any reason, including the inability or failure of the Agent to
obtain sufficient quotations in accordance with the terms thereof, the Alternate
Base Rate shall be determined without regard to clause (b) or (c), or both, of
the first sentence of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively.
"Applicable Percentage" shall mean on any date, with respect
to the Loans comprising any Eurodollar Standby Borrowing or
ABR Borrowing or the Facility Fee, as the case may be, the
applicable percentage set forth in the table below based upon
the ratings applicable on such date to Index Debt:
================================== =============== ================= ==========
Ratings Applicable to Index Debt Eurodollar
(S&P/Moody's) Facility Fee Standby Loan ABR Loan Spread
Spread
- ---------------------------------- --------------- ----------------- ----------------
- ---------------------------------- --------------- ----------------- ----------------
Category 1 .085% .265% 0%
- ----------
A- or higher or A3 or higher
- ---------------------------------- --------------- ----------------- ----------------
- ---------------------------------- --------------- ----------------- ----------------
Category 2 .125% .325% 0%
- ----------
BBB+ or Baa1
- ---------------------------------- --------------- ----------------- ----------------
- ---------------------------------- --------------- ----------------- ----------------
Category 3 .150% .350% 0%
- ----------
BBB or Baa2
- ---------------------------------- --------------- ----------------- ----------------
- ---------------------------------- --------------- ----------------- ----------------
Category 4 .175% .450% 0%
- ----------
BBB- or Baa3
- ---------------------------------- --------------- ----------------- ----------------
- ---------------------------------- --------------- ----------------- ----------------
Category 5 .250% .625% 0%
- ----------
lower than or equal to BB+ or
lower than or equal to Ba1
================================== =============== ================= ================
For purposes of the foregoing, (i) if the ratings established or deemed to have
been established by Moody's and S&P shall fall within different Categories, the
lower rating shall be disregarded, (ii) if Moody's or S&P shall not have in
effect a rating for Index Debt (other than because such rating agency shall no
longer be in the business of rating corporate debt obligations), such rating
agency will be deemed to have established a rating for Index Debt in Category 5
and (iii) if any rating established or deemed to have been established by
Moody's or S&P shall be changed (other than as a result of a change in the
rating system of Moody's or S&P), such change shall be effective as of the date
on which it is first announced by the applicable rating agency. Each change in
the Applicable Percentage shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of Moody's or S&P
shall change, or if either such rating agency shall cease to be in the business
of rating corporate debt obligations, KCSI and the Lenders shall negotiate in
good faith to amend the references to specific ratings in this definition to
reflect such changed rating system or the nonavailability of ratings from such
rating agency, and pending the effectiveness of such amendment, the Applicable
Percentage shall be determined by reference to the rating most recently in
effect from such rating agency.
"Assessment Rate" shall mean, for any day, the annual
assessment rate in effect on such day that is payable by a member of the Bank
Insurance Fund classified as "well-capitalized" and within supervisory subgroup
"B" (or a comparable successor risk classification) within the meaning of 12
C.F.R. Part 327 (or any successor provision) to the Federal Deposit Insurance
Corporation for insurance by such Corporation of time deposits made in dollars
at the offices of such member in the United States; provided that if, as a
result of any change in any law, rule or regulation, it is no longer possible to
determine the Assessment Rate as aforesaid, then the Assessment Rate shall be
such annual rate as shall be reasonably determined by the Agent to be
representative of the cost of such insurance to the Lenders.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee, and accepted by the Agent,
in the form of Exhibit C.
"Assumption" shall mean a transaction pursuant to this
Agreement and the AAA Agreement and on terms consistent in all material respects
with those disclosed to the Lenders prior to the date of this Agreement and
consummated prior to the Spin-Off in which (a) Stilwell becomes the Borrower
under this Agreement pursuant to the AAA Agreement and becomes liable for all
the Obligations to the same extent as KCSI (and the conditions to the
effectiveness set forth in the AAA Agreement are satisfied), (b) no person
(other than Stilwell) receives any consideration (other than common stock of
Stilwell) and (c) the assets and liabilities of Stilwell are the same as those
disclosed in the Confidential Memorandum.
"Assumption Date" shall mean the date on which the AAA
Agreement becomes effective in accordance with the terms thereof.
"Attributable Debt" shall mean, in connection with a Sale and
Leaseback Transaction, the present value (discounted in accordance with GAAP at
the debt rate implied in the lease) of the obligations of the Lessee for rental
payments during the term of the Lease.
"Berger" shall mean Stilwell Management, Inc., formerly known
as Berger Associates, Inc., a Delaware corporation.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Borrower" shall mean (a) prior to the Assumption Date, KCSI
and (b) on or after the Assumption Date, Stilwell.
"Borrowing" shall mean (a) a group of Loans of a single Type
made by the Lenders (or, in the case of a Competitive Borrowing, by the Lender
or Lenders whose Competitive Bids have been accepted pursuant to Section 2.03)
on a single date and as to which a single Interest Period is in effect or (b) a
Swingline Loan.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capitalized Lease Obligations" of any person shall mean the
obligations of such person under any lease that would be capitalized on a
balance sheet of such person prepared in accordance with GAAP, and the amount of
such obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986.
A "Change in Control" shall be deemed to have occurred if (i)
at any time prior to the Spin-Off, KCSI shall cease to own 100% of the voting
securities of Stilwell, (ii) at any time, less than 75% of the members of the
board of directors of the Borrower shall be (A) individuals who are members of
such board on the latest of the date hereof, the Assumption Date and the date of
the Spin-Off or (B) individuals whose election, or nomination for election by
the Borrower's stockholders, was approved by a vote of at least 75% of the
members of the board then still in office who are members of the board on the
latest of the date hereof, the Assumption Date and the date of the Spin-Off or
(iii) at any time, any person (other, prior to the Spin-Off, than KCSI), or any
two or more persons acting as a partnership, limited partnership, syndicate, or
other group for the purpose of acquiring, holding or disposing of securities of
the Borrower, shall become, according to public announcement or filing, the
"beneficial owner" (as defined in Rule 13d-3 issued under the Securities
Exchange Act of 1934, as amended), directly or indirectly, of securities of the
Borrower representing 30% or more (calculated in accordance with such Rule
13d-3) of the combined voting power of the Borrower's then outstanding voting
securities.
"Chase" shall mean The Chase Manhattan Bank.
"Code" shall mean the Internal Revenue Code of 1986, as the
same may be amended from time to time.
"Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to acquire participations
in Swingline Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.11 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Commitment
is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Lenders' Commitments is $200,000,000. The Commitments
shall automatically and permanently terminate on the Maturity Date if not
terminated earlier pursuant to Section 2.11.
"Competitive Bid" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a
notification made by the Borrower pursuant to Section 2.03(d) in the form of
Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid
made by a Lender pursuant to Section 2.03(b), (i) in the case of a Eurodollar
Loan, the Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant
to Section 2.03 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or Lenders
whose Competitive Bids for such Borrowing have been accepted by the Borrower
under the bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan from a Lender to the
Borrower pursuant to the bidding procedure described in Section 2.03. Each
Competitive Loan shall be a Eurodollar Competitive Loan or a Fixed Rate Loan.
"Confidential Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated December 1999.
"Consolidated EBITDA" shall mean, for any period, the sum for
such period of (a) Consolidated Net Income, (b) Consolidated Interest Expense,
(c) provision for income taxes and (d) any amount which in the determination of
Consolidated Net Income has been deducted for depreciation expense or
amortization expense, in each case determined in accordance with GAAP.
"Consolidated Interest Expense" shall mean, for any period,
total interest expense of the Borrower and the Consolidated Subsidiaries on a
consolidated basis for such period, determined in accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, the net
income of the Borrower and the Consolidated Subsidiaries on a consolidated basis
for such period but without giving effect to any extraordinary gains and gains
from the sale of assets (other than in the ordinary course of business),
determined in accordance with GAAP.
"Consolidated Net Worth" shall mean, on any date the
stockholders' equity of the Borrower and the Consolidated Subsidiaries on such
date, computed and consolidated in accordance with GAAP.
"Consolidated Subsidiary" shall mean each Subsidiary the
financial statements of which shall be required to be consolidated with the
financial statements of the Borrower in accordance with GAAP.
"Consolidated Total Assets" shall mean the total assets of the
Borrower and the Consolidated Subsidiaries on a consolidated basis at any time,
determined in accordance with GAAP.
"Consolidated Total Indebtedness" shall mean at any date all
Indebtedness of the Borrower and the Consolidated Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
"Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any Subsidiary, are treated
as a single employer under Section 414(b) or 414(c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, are treated as a
single employer under Section 414(b), (c), (m) or (o) of the Code.
"Default" shall mean any event or condition which upon notice,
lapse of time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States
of America.
"DST Systems" shall mean DST Systems, Inc., a Delaware
corporation.
"Environmental Lien" shall mean a Lien in favor of any
governmental entity for (a) any liability under Federal or state environmental
laws or regulations (including, without limitation, RCRA and CERCLA) or (b)
damages arising from costs incurred by such governmental entity in response to a
release of a hazardous or toxic waste, substance or constituent, or other
substance into the environment.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Competitive Borrowing" shall mean a Borrowing
comprised of Eurodollar Competitive Loans.
"Eurodollar Competitive Loan" shall mean any Competitive Loan
bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Competitive Loan
or Eurodollar Standby Loan.
"Eurodollar Standby Borrowing" shall mean a Borrowing
comprised of Eurodollar Standby Loans.
"Eurodollar Standby Loan" shall mean any Standby Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Event of Default" shall have the meaning assigned to such
term in Article VII.
"Facility Fee" shall have the meaning assigned to such term in
Section 2.06(a).
"Fee Letter" shall mean the letter agreement dated as of
December 6, 1999 among KCSI, the Agent and Chase Securities Inc.
"Fees" shall mean the Facility Fee, the Utilization Fee and
the Agent's Fees.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of
Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing
interest at a fixed percentage rate per annum (expressed in the form of a
decimal to no more than four decimal places) specified by the Lender making such
Loan in its Competitive Bid.
"GAAP" shall mean U.S. generally accepted accounting
principles, applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantee" of a person means any agreement by which such
person assumes, guarantees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise becomes liable upon, the obligation of
any other person, or agrees to maintain the net worth or working capital or
other financial condition of any other person or otherwise assures any creditor
of such other person against loss, including, without limitation, any comfort
letter, operating agreement or take-or-pay contract and shall include, without
limitation, the contingent liability of such person in connection with any
application for a Letter of Credit. The term "Guarantee" used as a verb has a
corresponding meaning.
"Indebtedness" of any person shall mean, without duplication,
(a) all obligations of such person for borrowed money, (b) all obligations of
such person evidenced by bonds, debentures, notes, acceptances, equipment trust
certificates or similar instruments, (c) all obligations of such person issued
or assumed as the deferred purchase price of property or services other than
accounts payable arising in the ordinary course of such person's business on
terms customary in the trade, (d) all obligations of such person, whether or not
assumed, secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien or payable
out of the proceeds or production from property owned or acquired by such
person, (e) Capitalized Lease Obligations of such person, (f) all Guarantees by
such person of Indebtedness of others and (g) any other obligations or
securities (other than up to $200,000,000 stated value of the convertible
preferred stock of the Borrower which may be issued and sold to an employee
stock ownership plan for employees of the Borrower and the Subsidiaries) which
such person is directly or indirectly obligated to repay, redeem, retire,
extinguish or repurchase (i) at a fixed or determinable date, whether by
operation of a sinking fund or otherwise, (ii) at the option of any person other
than the issuer thereof or (iii) upon the occurrence of a condition not solely
within the control of the issuer thereof or obligor thereon, such as a
redemption out of future earnings. The Indebtedness of any person shall include
the Indebtedness of any other entity (including any partnership in which such
person is a general partner) to the extent such person is liable therefor as a
result of such person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
person is not liable therefor.
"Index Debt" shall mean the senior unsecured non-credit
enhanced long-term indebtedness for borrowed money of KCSI.
"Interest Payment Date" shall mean, with respect to any Loan,
the last day of the Interest Period applicable thereto and, in the case of a
Eurodollar Loan with an Interest Period of more than three months' duration or a
Fixed Rate Loan with an Interest Period of more than 90 days' duration, each day
that would have been an Interest Payment Date for such Loan had successive
Interest Periods of three months' duration or 90 days duration, as the case may
be, been applicable to such Loan and, in addition, the date of any refinancing
or conversion of such Loan with or to a Loan of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day (or, if there is no numerically corresponding day,
on the last day) in the calendar month that is 1, 2, 3 or 6 months thereafter,
as the Borrower may elect, (b) as to any ABR Borrowing, the period commencing on
the date of such Borrowing and ending on the date 90 days thereafter or, if
earlier, on the Maturity Date or the date of prepayment of such Borrowing, (c)
as to any Fixed Rate Borrowing, the period commencing on the date of such
Borrowing and ending on the date specified in the Competitive Bids in which the
offer to make the Fixed Rate Loans comprising such Borrowing were extended,
which shall not be earlier than seven days after the date of such Borrowing or
later than 360 days after the date of such Borrowing and (d) as to any Swingline
Loan, the period commencing on the date of such Swingline Loan and ending on the
earlier of (x) the Maturity Date and (y) the date specified in the notice
requesting such Swingline Loan, which shall be no later than five Business Days
after the date of such Swingline Loan; provided, however, that if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, in the case of
Eurodollar Loans only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day. Interest shall accrue from and including the first day
of an Interest Period to but excluding the last day of such Interest Period.
"Janus" shall mean Janus Capital Corporation, a Colorado
corporation.
"KCSI" shall mean Kansas City Southern Industries, Inc., a
Delaware corporation.
"KCSI Confidential Information Memorandum" shall mean the
Confidential Information Memorandum dated December 1999 in connection with the
credit facilities made available to KCSI and KCSR in January 2000.
"KCSR" shall mean The Kansas City Southern Railway Company, a
Missouri corporation.
"Lenders" shall mean (a) the financial institutions listed on
Schedule 2.01 (other than any such financial institution that has ceased to be a
party hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance. Unless the context clearly indicates otherwise, the term "Lenders"
shall include the Swingline Lender.
"Letter of Credit" of a person shall mean a letter of credit
or similar instrument that is issued upon the application of such person or upon
which such person is an account party or for which such person is in any way
liable.
"LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, the rate appearing on Page 3750 of the
Telerate Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Agent from time to time for purposes of providing quotations
of interest rates applicable to dollar deposits in the London interbank market)
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan" shall mean a Competitive Loan or a Standby Loan,
whether made as a Eurodollar Loan, an ABR Loan, a Fixed Rate Loan or a Swingline
Loan, each as permitted hereby.
"Loan Documents" shall mean this Agreement, the AAA Agreement,
the Guarantee Agreement and the Fee Letter.
"Margin" shall mean, as to any Eurodollar Competitive Loan,
the margin (expressed as a percentage rate per annum in the form of a decimal to
no more than four decimal places) to be added to or subtracted from the LIBO
Rate in order to determine the interest rate applicable to such Loan, as
specified in the Competitive Bid relating to such Loan.
"Margin Stock" shall have the meaning given such term under
Regulation U.
"Maturity Date" shall mean January 9, 2001.
"Multiemployer Plan" shall mean a Plan that is a
"multiemployer plan" as defined in Section 4001(a)(3) of ERISA as to which the
Borrower or any member of the Controlled Group may have any liability.
"Multiple Employer Plan" shall mean a Plan that is a
single-employer plan which has two or more contributing sponsors at least two of
whom are not under common control or who made contributions under such Plan
during the preceding five years.
"Nelson" shall mean Nelson Money Managers plc, an English
corporation.
"1999 Credit Agreement" shall mean the Amended and Restated
364-Day Competitive Advance and Revolving Credit Facility Agreement dated as of
May 14, 1999 among KCSI, the lenders party thereto, Chase, as administrative
agent, and Bank of America NT&SA, as documentation agent, as amended,
supplemented or otherwise modified from time to time.
"Obligations" shall mean all unpaid principal of and accrued
and unpaid interest on the Loans, all accrued and unpaid Fees and all other
obligations of the Borrower to the Lenders or to any Lender or the Agent arising
under the Loan Documents.
"PBGC" shall mean the Pension Benefit Guarantee Corporation
referred to and defined in ERISA.
"Person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership, limited liability
company or government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan that is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code as to which the Borrower or any member of the Controlled
Group may have any liability.
"Pro Rata Percentage" of any Lender at any time shall mean the
percentage of the Total Commitment represented by such Lender's Commitment. In
the event that the Total Commitment shall have expired or been terminated, the
Pro Rata Percentage with respect to any Lender shall be such Lender's Pro Rata
Percentage most recently in effect prior to such expiration or termination of
the Total Commitment, giving effect to any subsequent assignments pursuant to
Section 9.04.
"Projections" shall have the meaning assigned to such term in
Section 3.05(b).
"RCRA" shall mean the Resources Conservation and Recovery Act,
as the same may be amended from time to time.
"Register" shall have the meaning given such term in Section
9.04(d).
"Regulation D" shall mean Regulation D of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation U" shall mean Regulation U of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation X" shall mean Regulation X of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Reportable Event" shall mean any reportable event as defined
in Section 4043 of ERISA and the regulations issued under such Section with
respect to a Plan (other than a Multiemployer Plan), excluding, however, such
events as to which the PBGC by regulation or by technical update waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event; provided that a failure to meet the minimum
funding standard of Section 412 of the Code and of Section 302 of ERISA shall be
a reportable event regardless of the issuance of any waiver in accordance with
Section 412(d) of the Code.
"Required Lenders" shall mean, at any time, (a)(i) the Agent
and Lenders in the aggregate holding more than 50% of the Total Commitment or
(ii) for purposes of acceleration pursuant to clause (ii) of Article VII or if
the Total Commitment has been terminated, the Agent and Lenders in the aggregate
representing more than 50% of the aggregate Revolving Credit Exposure or (b)(i)
Lenders in the aggregate holding more than 66-2/3% of the Total Commitment or
(ii) for purposes of acceleration pursuant to clause (ii) of Article VII or if
the Total Commitment has been terminated, Lenders in the aggregate representing
more than 66-2/3% of the Revolving Credit Exposure.
"Responsible Officer" of any corporation shall mean any
executive officer or Financial Officer of such corporation and any other officer
or similar official thereof responsible for the administration of the
obligations of such corporation in respect of this Agreement.
"Revolving Credit Exposure" shall mean, with respect to any
Lender at any time, the aggregate principal amount at such time of all
outstanding Standby Loans of such Lender plus the aggregate amount at such time
of such Lender's Swingline Exposure.
"Sale and Leaseback Transaction" shall have the meaning
assigned to such term in Section 6.03.
"Significant Subsidiary" shall mean, on any date of
determination, each of (a) KCSR, (b) Stilwell, (c) Janus, (d) Berger, (e) Berger
LLC, a subsidiary of Berger and (f) any other Subsidiary the assets of which
represent on such date more than 10% of the consolidated total assets of the
Borrower and the Consolidated Subsidiaries determined in accordance with GAAP.
"Specified Subsidiary" shall mean, at any time, a Subsidiary,
the total assets of which exceed at such time 3% of the total assets of the
Borrower and the Consolidated Subsidiaries, determined in accordance with GAAP.
"Spin-Off" shall mean the distribution of all of the shares of
common stock of Stilwell to the shareholders of KCSI.
"Standby Borrowing" shall mean a borrowing consisting of
simultaneous Standby Loans from each of the Lenders.
"Standby Borrowing Request" shall mean a request made pursuant
to Section 2.04 in the form of Exhibit A-5.
"Standby Loans" shall mean the revolving loans made by the
Lenders to the Borrower pursuant to Section 2.04. Each Standby Loan shall be a
Eurodollar Standby Loan or an ABR Loan.
"Statutory Reserves" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board and any other banking authority to which
the Agent is subject (a) with respect to the Base CD Rate (as such term is used
in the definition of "Alternate Base Rate"), for new negotiable nonpersonal time
deposits in dollars of over $100,000 with maturities approximately equal to
three months and (b) with respect to the Adjusted LIBO Rate, for Eurocurrency
Liabilities (as defined in Regulation D). Such reserve percentages shall include
any imposed pursuant to Regulation D. Eurodollar Loans shall be deemed to
constitute Eurocurrency Liabilities and to be subject to such reserve
requirements without benefits of or credit for proration, exemptions or offsets.
Statutory Reserves shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
"STB" shall mean the Surface Transportation Board, a board
established within the Department of Transportation or any successor Federal
agency charged with similar regulation of common carriers.
"Stilwell" shall mean Stilwell Financial, Inc., a Delaware
corporation that at all times prior to the Spin-Off will be a direct wholly
owned subsidiary of KCSI.
"subsidiary" shall mean, with respect to any person, any
corporation, partnership, limited liability company, association or other
business entity of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or
more than 50% of the general partnership interests or limited liability company
interests or other ownership interests are, at the time any determination is
being made, owned, controlled or held.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall equal its Pro Rata Percentage of the
aggregate Swingline Exposure at such time.
"Swingline Lender" means Chase, in its capacity as lender of
Swingline Loans hereunder or another Lender that has agreed to provide Swingline
Loans hereunder; provided that the Borrower shall have delivered to the Agent a
written notice that it has elected to replace Chase as Swingline Lender (it
being understood that there shall be only one Swingline Lender hereunder at any
time).
"Swingline Loan" means a Loan made pursuant to Section 2.22.
"Total Commitment" shall mean at any time the aggregate amount
of the Lenders' Commitments, as in effect at such time.
"Transactions" shall have the meaning assigned to such term in
Section 3.02.
"Transfer Transaction" shall mean a transaction on terms
consistent in all material respects with those disclosed to the Lenders prior to
the date of this Agreement and consummated prior to the Spin-Off in which KCSI
contributed to Stilwell the assets and operations of KCSI's financial asset
management business, including (i) 100% of the capital stock of Berger, (ii)
approximately 82% of the capital stock of Janus, (iii) approximately 32% of the
capital stock of DST Systems and (iv) approximately 80% of the capital stock of
Nelson.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall
include the Adjusted LIBO Rate, the LIBO Rate, the Alternate Base Rate and the
Fixed Rate.
"Unfunded Liabilities" shall mean, on any date of
determination, (a) in the case of Multiemployer Plans and Multiple Employer
Plans, the liability of the Borrower and the Subsidiaries if they were to incur
a complete withdrawal from each such plan and (b) in the case of all other
Plans, all "unfunded benefit liabilities" as defined in Section 4001(a)(18) of
ERISA.
"Utilization Fee" shall have the meaning assigned to such term
in Section 2.06(b).
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms GenerallySECTION 1.02. Terms Generally.
The definitions in Section 1.01 shall apply equally to both the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". All references herein to Articles, Sections,
Exhibits and Schedules shall be deemed references to Articles and Sections of,
and Exhibits and Schedules to, this Agreement unless the context shall otherwise
require. Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided, however, that, for purposes of determining
compliance with any covenant set forth in Article VI, such terms shall be
construed in accordance with GAAP as in effect on the date of this Agreement
applied on a basis consistent with the application used in preparing the
Borrower's audited financial statements referred to in Section 3.05. In the
event that any change in GAAP materially affects any provision of this
Agreement, the parties hereto agree that, at the request of the Borrower or the
Required Lenders, they shall negotiate in good faith in order to amend the
affected provisions in such a way as will restore the parties to their
respective positions prior to such change, and, following any such request,
until such amendment becomes effective, the Borrower's compliance with such
provisions shall be determined on the basis of GAAP as in effect immediately
before such change in GAAP became effective.
ARTICLE II. THE CREDITSARTICLE II. THE CREDITS
SECTION 2.01. CommitmentsSECTION 2.01. Commitments. Subject to
the terms and conditions and relying upon the representations and warranties
herein set forth, each Lender agrees, severally and not jointly, to make Standby
Loans to the Borrower, at any time and from time to time on and after the date
hereof and until the earlier of the Maturity Date and the termination of the
Commitment of such Lender, in an aggregate principal amount at any time
outstanding not to exceed such Lender's Commitment minus the amount by which the
Competitive Loans outstanding at such time or Swingline Loans outstanding at
such time shall be deemed to have used such Commitment pursuant to Section 2.16,
subject, however, to the conditions that at no time shall (a) the sum of (i) the
total Revolving Credit Exposures plus (ii) the outstanding aggregate principal
amount of all Competitive Loans made by all Lenders exceed the Total Commitment,
and (b) such Lender's Revolving Credit Exposure exceed such Lender's Commitment.
Each Lender's Commitment is set forth opposite its respective name in Schedule
2.01. Such Commitments may be terminated or reduced from time to time pursuant
to Section 2.11.
Within the foregoing limits, the Borrower may borrow, pay or
prepay and reborrow hereunder, on and after the date hereof and prior to the
Maturity Date, subject to the terms, conditions and limitations set forth
herein.
SECTION 2.02. LoansSECTION 2.02. Loans. (a) Each Standby Loan
shall be made as part of a Borrowing consisting of Loans made by the Lenders
ratably in accordance with their Commitments; provided, however, that the
failure of any Lender to make any Standby Loan shall not in itself relieve any
other Lender of its obligation to lend hereunder (it being understood, however,
that no Lender shall be responsible for the failure of any other Lender to make
any Loan required to be made by such other Lender). Each Competitive Loan shall
be made in accordance with the procedures set forth in Section 2.03. The Standby
Loans or Competitive Loans or Swingline Loans comprising any Borrowing shall be
(i) in the case of Competitive Loans, in an aggregate principal amount which is
an integral multiple of $1,000,000 and not less than $5,000,000, (ii) in the
case of Standby Loans, in an aggregate principal amount which is an integral
multiple of $1,000,000 and not less than $5,000,000 (or an aggregate principal
amount equal to the remaining balance of the available Commitments) and (iii) in
the case of Swingline Loans, in an aggregate principal amount which is an
integral multiple of $100,000 and not less than $500,000.
(b) Each Competitive Borrowing shall be comprised entirely of
Eurodollar Competitive Loans or Fixed Rate Loans, and each Standby Borrowing
shall be comprised entirely of Eurodollar Standby Loans or ABR Loans, as the
Borrower may request pursuant to Section 2.03 or 2.04, as applicable, and each
Swingline Loan shall be comprised entirely of ABR Loans unless otherwise agreed
by the Borrower and the Swingline Lender pursuant to Section 2.08(d). Each
Lender may at its option make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Agreement. Borrowings of more
than one Type may be outstanding at the same time; provided, however, that the
Borrower shall not be entitled to request any Borrowing which, if made, would
result in an aggregate of more than thirteen separate Standby Loans of any
Lender being outstanding hereunder at any one time. For purposes of the
foregoing, Loans having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Loans.
(c) Subject to Section 2.05, each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Agent in New York, New York, not later than
12:00 noon, New York City time, and the Agent shall by 3:00 p.m., New York City
time, credit the amounts so received to the general deposit account of the
Borrower with the Agent or, if a Borrowing shall not occur on such date because
any condition precedent herein specified shall not have been met, return the
amounts so received to the respective Lenders; provided that Swingline Loans
shall be made as provided in Section 2.22. Competitive Loans shall be made by
the Lender or Lenders whose Competitive Bids therefor are accepted pursuant to
Section 2.03 in the amounts so accepted and Standby Loans shall be made by the
Lenders pro rata in accordance with Section 2.16. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments and Competitive Bids of
the Lenders are several and no Lender shall be responsible for any other
Lender's failure to make Loans as required. Unless the Agent shall have received
notice from a Lender prior to the date of any Borrowing that such Lender will
not make available to the Agent such Lender's portion of such Borrowing, the
Agent may assume that such Lender has made such portion available to the Agent
on the date of such Borrowing in accordance with this paragraph (c) and the
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have made such portion available to the Agent, such Lender and the Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the Agent
at (i) in the case of the Borrower, the interest rate applicable at the time to
the Loans comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Effective Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount shall constitute such Lender's Loan as part of
such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.
SECTION 2.03. Competitive Bid ProcedureSECTION 2.03.
Competitive Bid Procedure. (a) In order to request Competitive Bids, the
Borrower shall hand deliver, telex or telecopy to the Agent a duly completed
Competitive Bid Request in the form of Exhibit A-1 hereto, to be received by the
Agent (i) in the case of a Eurodollar Competitive Borrowing, not later than
10:00 a.m., New York City time, four Business Days before a proposed Competitive
Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later than 10:00
a.m., New York City time, one Business Day before a proposed Competitive
Borrowing. No ABR Loan shall be requested in, or made pursuant to, a Competitive
Bid Request. A Competitive Bid Request that does not conform substantially to
the format of Exhibit A-1 may be rejected in the Agent's sole discretion, and
the Agent shall promptly notify the Borrower of such rejection by telex or
telecopier. Such request shall in each case refer to this Agreement and specify
(x) whether the Borrowing then being requested is to be a Eurodollar Borrowing
or a Fixed Rate Borrowing, (y) the date of such Borrowing (which shall be a
Business Day) and the aggregate principal amount thereof which shall be in a
minimum principal amount of $5,000,000 and in an integral multiple of
$1,000,000, and (z) the Interest Period with respect thereto (which may not end
after the Maturity Date). Promptly after its receipt of a Competitive Bid
Request that is not rejected as aforesaid, the Agent shall invite by telecopier
(in the form set forth in Exhibit A-2 hereto) the Lenders to bid, on the terms
and conditions of this Agreement, to make Competitive Loans pursuant to the
Competitive Bid Request.
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to a Competitive Bid Request. Each
Competitive Bid by a Lender must be received by the Agent via telecopier, in the
form of Exhibit A-3 hereto, (i) in the case of a Eurodollar Competitive
Borrowing, not later than 9:30 a.m., New York City time, three Business Days
before a proposed Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 9:30 a.m., New York City time, on the day of a
proposed Competitive Borrowing. Multiple bids will be accepted by the Agent.
Competitive Bids that do not conform substantially to the format of Exhibit A-3
may be rejected by the Agent after conferring with, and upon the instruction of,
the Borrower, and the Agent shall notify the Lender making such nonconforming
bid of such rejection as soon as practicable. Each Competitive Bid shall refer
to this Agreement and specify (x) the principal amount (which shall be in a
minimum principal amount of $5,000,000 and in an integral multiple of $1,000,000
and which may equal the entire principal amount of the Competitive Borrowing
requested by the Borrower) of the Competitive Loan or Loans that the Lender is
willing to make to the Borrower, (y) the Competitive Bid Rate or Rates at which
the Lender is prepared to make the Competitive Loan or Loans and (z) the
Interest Period and the last day thereof. If any Lender shall elect not to make
a Competitive Bid, such Lender shall so notify the Agent via telecopier (I) in
the case of Eurodollar Competitive Loans, not later than 9:30 a.m., New York
City time, three Business Days before a proposed Competitive Borrowing, and (II)
in the case of Fixed Rate Loans, not later than 9:30 a.m., New York City time,
on the day of a proposed Competitive Borrowing; provided, however, that failure
by any Lender to give such notice shall not cause such Lender to be obligated to
make any Competitive Loan as part of such Competitive Borrowing. A Competitive
Bid submitted by a Lender pursuant to this paragraph (b) shall be irrevocable.
(c) The Agent shall promptly notify the Borrower by telecopier
of all the Competitive Bids made, the Competitive Bid Rate and the principal
amount of each Competitive Loan in respect of which a Competitive Bid was made
and the identity of the Lender that made each bid. The Agent shall send a copy
of all Competitive Bids to the Borrower for its records as soon as practicable
after completion of the bidding process set forth in this Section 2.03.
(d) The Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. The Borrower shall notify
the Agent by telephone, confirmed by telecopier in the form of a Competitive Bid
Accept/Reject Letter in the form of Exhibit A-4 hereto, whether and to what
extent it has decided to accept or reject any of or all the bids referred to in
paragraph (c) above, (x) in the case of a Eurodollar Competitive Borrowing, not
later than 10:30 a.m., New York City time, three Business Days before a proposed
Competitive Borrowing, and (y) in the case of a Fixed Rate Borrowing, not later
than 10:30 a.m., New York City time, on the day of a proposed Competitive
Borrowing; provided, however, that (i) the failure by the Borrower to give such
notice shall be deemed to be a rejection of all the bids referred to in
paragraph (c) above, (ii) the Borrower shall not accept a bid made at a
particular Competitive Bid Rate if the Borrower has decided to reject a bid made
at a lower Competitive Bid Rate, (iii) the aggregate amount of the Competitive
Bids accepted by the Borrower shall not exceed the principal amount specified in
the Competitive Bid Request and shall be in a minimum principal amount of
$5,000,000, (iv) if the Borrower shall accept a bid or bids made at a particular
Competitive Bid Rate but the amount of such bid or bids shall cause the total
amount of bids to be accepted by the Borrower to exceed the amount specified in
the Competitive Bid Request, then the Borrower shall accept a portion of such
bid or bids in an amount equal to the amount specified in the Competitive Bid
Request less the amount of all other Competitive Bids accepted with respect to
such Competitive Bid Request, which acceptance, in the case of multiple bids at
such Competitive Bid Rate, shall be made pro rata in accordance with the amount
of each such bid at such Competitive Bid Rate, and (v) except pursuant to clause
(iv) above, no bid shall be accepted for a Competitive Loan unless such
Competitive Loan is in a minimum principal amount of $5,000,000 and an integral
multiple of $1,000,000; provided further, however, that if a Competitive Loan
must be in an amount less than $5,000,000 because of the provisions of clause
(iv) above, such Competitive Loan may be for a minimum of $1,000,000 or any
integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple bids at a particular Competitive Bid Rate
pursuant to clause (iv) the amounts shall be rounded to integral multiples of
$1,000,000 in a manner which shall be in the discretion of the Borrower. A
notice given by the Borrower pursuant to this paragraph (d) shall be
irrevocable.
(e) The Agent shall promptly notify each bidding Lender
whether or not its Competitive Bid has been accepted (and if so, in what amount
and at what Competitive Bid Rate) by telecopy sent by the Agent, and each
successful bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Loan in respect of which its bid has
been accepted.
(f) A Competitive Bid Request shall not be made within five
Business Days after the date of any previous Competitive Bid Request.
(g) If the Agent shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such bid directly to the Borrower one
quarter of an hour earlier than the latest time at which the other Lenders are
required to submit their bids to the Agent pursuant to paragraph (b) above.
(h) All Notices required by this Section 2.03 shall be given
in accordance with Section 9.01.
SECTION 2.04. Standby Borrowing ProcedureSECTION 2.04. Standby
Borrowing Procedure. In order to request a Standby Borrowing, the Borrower shall
hand deliver or telecopy to the Agent in the form of Exhibit A-5 (a) in the case
of a Eurodollar Standby Borrowing, not later than 10:30 a.m., New York City
time, three Business Days before a proposed borrowing and (b) in the case of an
ABR Borrowing, not later than 10:30 a.m., New York City time, on the day of a
proposed borrowing. No Fixed Rate Loan shall be requested or made pursuant to a
Standby Borrowing Request. Such notice shall be irrevocable and shall in each
case specify (i) whether the Borrowing then being requested is to be a
Eurodollar Standby Borrowing or an ABR Borrowing; (ii) the date of such Standby
Borrowing (which shall be a Business Day) and the amount thereof; and (iii) if
such Borrowing is to be a Eurodollar Standby Borrowing, the Interest Period with
respect thereto. If no election as to the Type of Standby Borrowing is specified
in any such notice, then the requested Standby Borrowing shall be an ABR
Borrowing. If no Interest Period with respect to any Eurodollar Standby
Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. If the Borrower shall
not have given notice in accordance with this Section 2.04 of its election to
refinance a Standby Borrowing prior to the end of the Interest Period in effect
for such Borrowing, then the Borrower shall (unless such Borrowing is repaid at
the end of such Interest Period) be deemed to have given notice of an election
to refinance such Borrowing with an ABR Borrowing. The Agent shall promptly
advise the Lenders of any notice given pursuant to this Section 2.04 and of each
Lender's portion of the requested Borrowing.
SECTION 2.05. RefinancingsSECTION 2.05. Refinancings. The
Borrower may refinance all or any part of any Borrowing with a Borrowing of the
same or a different Type made pursuant to Section 2.03 or Section 2.04, subject
to the conditions and limitations set forth herein and elsewhere in this
Agreement, including refinancings of Competitive Borrowings with Standby
Borrowings and Standby Borrowings with Competitive Borrowings. Any Borrowing or
part thereof so refinanced shall be deemed to be repaid in accordance with
Section 2.07 with the proceeds of a new Borrowing hereunder and the proceeds of
the new Borrowing, to the extent they do not exceed the principal amount of the
Borrowing being refinanced, shall not be paid by the Lenders to the Agent or by
the Agent to the Borrower pursuant to Section 2.02(c); provided, however, that
(i) if the principal amount extended by a Lender in a refinancing is greater
than the principal amount extended by such Lender in the Borrowing being
refinanced, then such Lender shall pay such difference to the Agent for
distribution to the Lenders described in (ii) below, (ii) if the principal
amount extended by a Lender in the Borrowing being refinanced is greater than
the principal amount being extended by such Lender in the refinancing, the Agent
shall return the difference to such Lender out of amounts received pursuant to
(i) above, and (iii) to the extent any Lender fails to pay the Agent amounts due
from it pursuant to (i) above, any Loan or portion thereof being refinanced with
such amounts shall not be deemed repaid in accordance with Section 2.07 and
shall be payable by the Borrower. This Section shall not apply to Swingline
Borrowings, which may not be refinanced.
SECTION 2.06. FeesSECTION 2.06. Fees. (a) The Borrower agrees
to pay to each Lender, through the Agent, a facility fee (a "Facility Fee") at a
rate per annum equal to the Applicable Percentage from time to time in effect on
the amount of the Commitment of such Lender, whether used or unused, during the
period commencing with the date hereof to but excluding the date on which such
Commitment terminates; provided that if such Lender continues to have any
Revolving Credit Exposure after its Commitment terminates, then such Facility
Fee shall continue to accrue on the daily amount of such Lender's Revolving
Credit Exposure from and including the date on which its Commitment terminates
to but excluding the date on which such Lender ceases to have any Revolving
Credit Exposure. Accrued Facility Fees shall be payable in arrears on the last
day of March, June, September and December of each year and on the date on which
the Commitments terminate, commencing on the first such date to occur after the
date hereof; provided that any Facility Fees accruing after the date on which
the Commitments terminate shall be payable on demand. All Facility Fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(b) For any day on which the outstanding principal amount of
Loans shall be greater than 33% of the total Commitments, the Borrower shall pay
to the Agent for the account of each Lender a utilization fee (a "Utilization
Fee") equal to 0.125% per annum on the aggregate amount of each Lender's
outstanding Loans on such day. The accrued Utilization Fees, if any, shall be
payable in arrears on the last day of each March, June, September and December
and on the date or dates on which the Commitments terminate and any outstanding
Loans are repaid. All Utilization Fees shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The Borrower agrees to pay the Agent, for its own account,
the fees (the "Agent's Fees") at the times and in the amounts previously agreed
by the Borrower and the Agent.
(d) All Fees shall be paid on the dates due, in immediately
available funds, to the Agent for distribution, if and as appropriate, among the
Lenders. Once paid, none of the Fees shall be refundable under any circumstances
absent manifest error.
SECTION 2.07. Repayment of Loans; Evidence of DebtSECTION
2.07. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Revolving Loan on the
Maturity Date, (ii) to the Administrative Agent for the account of each Lender
the then unpaid principal amount of each Competitive Loan on the last day of the
Interest Period applicable to such Loan and (iii) to the Swingline Lender the
then unpaid principal amount of each Swingline Loan on the earlier of the
Maturity Date and the fifth Business Day after such Swingline Loan is made;
provided that on each date that a Revolving Borrowing or Competitive Borrowing
is made, the Borrower shall repay all Swingline Loans then outstanding.
(b) The outstanding principal balance of each Competitive
Loan, each Standby Loan and each Swingline Loan shall be payable on the last day
of the Interest Period applicable to such Loan and on the Maturity Date. Each
Competitive Loan, each Standby Loan and each Swingline Loan shall bear interest
from the date thereof on the outstanding principal balance thereof as set forth
in Section 2.08. Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement. The Agent shall maintain accounts in which it will record
(i) the amount of each Loan made hereunder, the Type of each Loan made and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Agent hereunder from
the Borrower and each Lender's share thereof. The entries made in the accounts
maintained pursuant to this Section 2.07 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender
or the Agent to maintain such accounts or any error therein shall not in any
manner (i) affect the obligations of the Borrower to repay the Loans in
accordance with their terms or (ii) cause the Borrower's obligations to be
greater than they would have been absent such failure or error.
(c) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Agent. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.08. Interest on LoansSECTION 2.08. Interest on
Loans. (a) Subject to the provisions of Section 2.09, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to (i)
in the case of each Eurodollar Standby Loan, the Adjusted LIBO Rate for the
Interest Period in effect for such Borrowing plus the Applicable Percentage, and
(ii) in the case of each Eurodollar Competitive Loan, the LIBO Rate for the
Interest Period in effect for such Borrowing plus the Margin offered by the
Lender making such Loan and accepted by the Borrower pursuant to Section 2.03.
Interest on each Eurodollar Borrowing shall be payable on each applicable
Interest Payment Date. The Adjusted LIBO Rate and the LIBO Rate for each
Interest Period shall be determined by the Agent, and such determination shall
be conclusive absent manifest error. The Agent shall promptly advise the
Borrower and each Lender, as appropriate, of such determination.
(b) Subject to the provisions of Section 2.09, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be, when determined by reference to the Prime Rate and over a year of 360 days
at all other times) at a rate per annum equal to the Alternate Base Rate plus
the Applicable Percentage. Interest on each ABR Borrowing shall be payable on
each applicable Interest Payment Date. The Alternate Base Rate shall be
determined by the Agent, and such determination shall be conclusive absent
manifest error. The Agent shall promptly advise the Borrower and each Lender of
such determination.
(c) Subject to the provisions of Section 2.09, each Fixed Rate
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Lender making such Loan and accepted by the Borrower
pursuant to Section 2.03. Interest on each Fixed Rate Loan shall be payable on
the Interest Payment Dates applicable to such Loan except as otherwise provided
in this Agreement.
(d) Subject to the provisions of Section 2.09, each Swingline
Loan shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be) at such rate per
annum as shall be agreed to in writing by the Borrower and the Swingline Lender
with respect to such Swingline Loan or, if no such agreement shall be made, at a
rate per annum equal to the Alternate Base Rate. Interest on each Swingline Loan
shall be payable on each applicable Interest Payment Date.
SECTION 2.09. Default InterestSECTION 2.09. Default Interest.
If the Borrower shall default in the payment of the principal of or interest on
any Loan or any other amount becoming due hereunder, whether by scheduled
maturity, notice of prepayment, acceleration or otherwise, the Borrower shall on
demand from time to time from the Agent pay interest, to the extent permitted by
law, on such defaulted amount up to (but not including) the date of actual
payment (after as well as before judgment) at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 360 days) equal to the
Alternate Base Rate plus the Applicable Percentage plus 2%.
SECTION 2.10. Alternate Rate of InterestSECTION 2.10.
Alternate Rate of Interest. In the event, and on each occasion, that on the day
two Business Days prior to the commencement of any Interest Period for a
Eurodollar Borrowing the Agent shall have determined that dollar deposits in the
principal amounts of the Eurodollar Loans comprising such Borrowing are not
generally available in the London interbank market, or that the rates at which
such dollar deposits are being offered will not adequately and fairly reflect
the cost to any Lender of making or maintaining its Eurodollar Loan during such
Interest Period, or that reasonable means do not exist for ascertaining the
Adjusted LIBO Rate or the LIBO Rate, the Agent shall, as soon as practicable
thereafter, give written or telecopy notice of such determination to the
Borrower and the Lenders. In the event of any such determination, until the
Agent shall have advised the Borrower and the Lenders that the circumstances
giving rise to such notice no longer exist, (i) any request by the Borrower for
a Eurodollar Competitive Borrowing pursuant to Section 2.03 shall be of no force
and effect and shall be denied by the Agent and (ii) any request by the Borrower
for a Eurodollar Standby Borrowing pursuant to Section 2.04 shall be deemed to
be a request for an ABR Borrowing. In the event of any such determination, the
Lenders shall negotiate with the Borrower, at its request, as to the interest
rate which the Loans comprising such an ABR Borrowing shall bear; provided that
such Loans shall bear interest as provided in Section 2.08(b) pending the
execution by the Borrower and the Lenders of a written agreement providing for a
different interest rate. Each determination by the Agent hereunder shall be
conclusive absent manifest error.
SECTION 2.11. Termination and Reduction of CommitmentsSECTION
2.11. Termination and Reduction of Commitments. (a) Upon at least three Business
Days' prior irrevocable written or telecopy notice to the Agent, the Borrower
may at any time in whole permanently terminate, or from time to time in part
permanently reduce, the Total Commitment; provided, however, that (i) each
partial reduction of the Total Commitment shall be in an integral multiple of
$1,000,000 and in a minimum principal amount of $5,000,000 and (ii) no such
termination or reduction shall be made if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.12, the sum of the
Revolving Credit Exposures plus the aggregate outstanding principal amount of
the Competitive Loans would exceed the Total Commitment.
(b) Each reduction in the Total Commitment hereunder shall be
made ratably among the Lenders in accordance with their respective Commitments.
The Borrower shall pay to the Agent for the account of the Lenders, on the date
of each termination or reduction, the Facility Fees on the amount of the
Commitments so terminated or reduced accrued through the date of such
termination or reduction.
(c) Unless previously terminated, the Commitments shall
terminate on the Maturity Date.
SECTION 2.12. PrepaymentSECTION 2.12. Prepayment. (a) The
Borrower shall have the right at any time and from time to time to prepay any
Standby Borrowing, in whole or in part, upon giving written or telecopy notice
(or telephone notice promptly confirmed by written or telecopy notice) to the
Agent: (i) before 10:00 a.m., New York City time, three Business Days prior to
prepayment, in the case of Eurodollar Loans, and (ii) before 10:00 a.m., New
York City time, one Business Day prior to prepayment, in the case of ABR Loans;
provided, however, that each partial prepayment shall be in an amount which is
an integral multiple of $1,000,000 and not less than $5,000,000. The Borrower
shall not have the right to prepay any Competitive Borrowing.
(b) On the date of any termination or reduction of the
Commitments pursuant to Section 2.11, the Borrower shall pay or prepay so much
of the Standby Borrowings as shall be necessary in order that the aggregate
principal amount of the Competitive Loans and the total Revolving Credit
Exposures will not exceed the Total Commitment after giving effect to such
termination or reduction. In the event of any termination of all of the
Commitments, the Borrower shall repay or prepay all outstanding Standby Loans
and all outstanding Swingline Loans on the date of such termination.
(c) Each notice of prepayment shall specify the prepayment
date and the principal amount of each Borrowing (or portion thereof) to be
prepaid, shall be irrevocable and shall commit the Borrower to prepay such
Borrowing (or portion thereof) by the amount stated therein on the date stated
therein. All prepayments under this Section 2.12 shall be subject to Section
2.15 but shall otherwise be without premium or penalty. All prepayments under
this Section 2.12 shall be accompanied by accrued interest on the principal
amount being prepaid to the date of payment.
SECTION 2.13. Reserve Requirements; Change in
CircumstancesSECTION 2.13. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender of the
principal of or interest on any Eurodollar Loan or Fixed Rate Loan made by such
Lender or any Fees or other amounts payable hereunder (other than changes in
respect of taxes imposed on the overall net income of such Lender by the
jurisdiction in which such Lender has its principal or applicable lending office
or by any political subdivision or taxing authority therein), or shall impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of or credit extended by
such Lender (except any such reserve requirement which is reflected in the
Adjusted LIBO Rate), or shall impose on such Lender or the London interbank
market any other condition affecting this Agreement or any Eurodollar Loan or
Fixed Rate Loan made by such Lender, and the result of any of the foregoing
shall be to increase the direct cost to such Lender of making or maintaining any
Eurodollar Loan or Fixed Rate Loan or to reduce the amount of any sum received
or receivable by such Lender hereunder or (whether of principal, interest or
otherwise) by an amount reasonably deemed by such Lender to be material, then
the Borrower will pay to such Lender upon demand such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered. Notwithstanding the foregoing, no Lender shall be entitled
to request compensation under this paragraph with respect to any Competitive
Loan if it shall have been aware of the change giving rise to such request at
the time of submission of the Competitive Bid pursuant to which such Competitive
Loan shall have been made.
(b) If any Lender shall have determined that the applicability
of any law, rule, regulation or guideline adopted pursuant to or arising out of
the July 1988 report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of Capital Measurement
and Capital Standards", or the adoption after the date hereof of any other law,
rule, regulation or guideline regarding capital adequacy, or any change in any
of the foregoing or in the interpretation or administration of any of the
foregoing by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender (or any lending office of such Lender) or any Lender's holding company
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender's capital
or on the capital of such Lender's holding company, if any, as a consequence of
this Agreement or the Loans made by such Lender pursuant hereto to a level below
that which such Lender or such Lender's holding company could have achieved but
for such applicability, adoption, change or compliance (taking into
consideration such Lender's policies and the policies of such Lender's holding
company with respect to capital adequacy) by an amount reasonably deemed by such
Lender to be material, then from time to time the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered. It is acknowledged
that this Agreement is being entered into by the Lenders on the understanding
that the Lenders will not be required to maintain capital against their
Commitments under currently applicable laws, regulations and regulatory
guidelines. In the event the Lenders shall be advised by any Governmental
Authority or shall otherwise determine on the basis of pronouncements of any
Governmental Authority that such understanding is incorrect, it is agreed that
the Lenders will be entitled to make claims under this paragraph (b) based upon
market requirements prevailing on the date hereof for commitments under
comparable credit facilities against which capital is required to be maintained.
(c) Failure on the part of any Lender to demand compensation
for any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any period shall not constitute a
waiver of such Lender's right to demand compensation with respect to such period
or any other period. The protection of this Section shall be available to each
Lender regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, guideline or other change or
condition which shall have occurred or been imposed.
SECTION 2.14. Change in LegalitySECTION 2.14. Change in
Legality. (a) Notwithstanding any other provision herein, if any change in any
law or regulation or in the interpretation thereof by any governmental authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made
by such Lender hereunder, whereupon such Lender shall not submit a
Competitive Bid in response to a request for Eurodollar Competitive
Loans and any request by the Borrower for a Eurodollar Standby
Borrowing shall, as to such Lender only, be deemed a request for an ABR
Loan unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it
be converted to ABR Loans, in which event all such Eurodollar Loans
shall be automatically converted to ABR Loans as of the effective date
of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, and
(x) all payments and prepayments of principal which would otherwise have been
applied to repay the Eurodollar Loans that would have been made by such Lender
or the converted Eurodollar Loans of such Lender shall instead be applied to
repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans and (y) such Lender shall negotiate with
the Borrower, at its request, as to the interest rate which such ABR Loans shall
bear; provided that such Loans shall bear interest as provided in Section
2.08(b) pending the execution by the Borrower and such Lender of a written
agreement providing for a different interest rate.
(b) For purposes of this Section 2.14, a notice to the
Borrower by any Lender shall be effective as to each Eurodollar Loan, if lawful,
on the last day of the Interest Period currently applicable to such Eurodollar
Loan; in all other cases such notice shall be effective on the date of receipt
by the Borrower.
SECTION 2.15. IndemnitySECTION 2.15. Indemnity. The Borrower
shall indemnify each Lender against any loss or expense which such Lender may
sustain or incur as a consequence of (a) any failure by the Borrower to fulfill
on the date of any borrowing hereunder the applicable conditions set forth in
Article IV, (b) any failure by the Borrower to borrow or to refinance or
continue any Loan hereunder, for any reason other than a default by such Lender,
after irrevocable notice of such borrowing, refinancing or continuation has been
given pursuant to Section 2.03 or 2.04, (c) any payment, prepayment or
conversion of a Eurodollar Loan or Fixed Rate Loan required by any other
provision of this Agreement or otherwise made or deemed made on a date other
than the last day of the Interest Period applicable thereto, (d) any default in
payment or prepayment of the principal amount of any Loan or any part thereof or
interest accrued thereon, as and when due and payable (at the due date thereof,
whether by scheduled maturity, acceleration, irrevocable notice of prepayment or
otherwise) or (e) the occurrence of any Event of Default, including, in each
such case, any loss or reasonable expense sustained or incurred or to be
sustained or incurred in liquidating or employing deposits from third parties
acquired to effect or maintain such Loan or any part thereof as a Eurodollar
Loan or Fixed Rate Loan. Such loss or reasonable expense shall include an amount
equal to the excess, if any, as reasonably determined by such Lender, of (i) its
cost of obtaining the funds for the Loan being paid, prepaid, converted or not
borrowed (assumed to be the Adjusted LIBO Rate or, in the case of a Fixed Rate
Loan, the fixed rate of interest applicable thereto) for the period from the
date of such payment, prepayment or failure to borrow to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan which would have commenced on the date of such
failure) over (ii) the amount of interest (as reasonably determined by such
Lender) that would be realized by such Lender in reemploying the funds so paid,
prepaid or not borrowed for such period or Interest Period, as the case may be.
SECTION 2.16. Pro Rata TreatmentSECTION 2.16. Pro Rata
Treatment. Except as required under Section 2.14, each Standby Borrowing, each
payment or prepayment of principal of any Standby Borrowing, each payment of
interest on the Standby Loans, each payment of the Facility Fees, each reduction
of the Commitments and each refinancing of any Borrowing with a Standby
Borrowing of any Type, shall be allocated pro rata among the Lenders in
accordance with their respective Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective principal amounts
of their outstanding Standby Loans). Each payment of principal of any
Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective principal
amounts of their outstanding Competitive Loans comprising such Borrowing. Each
payment of interest on any Competitive Borrowing shall be allocated pro rata
among the Lenders participating in such Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For purposes of determining the
available Commitments of the Lenders at any time, each outstanding Competitive
Borrowing and each outstanding Swingline Loan shall be deemed to have utilized
the Commitments of the Lenders (including those Lenders which shall not have
made Loans as part of such Competitive Borrowing and those Lenders that shall
not have made Swingline Loans) pro rata in accordance with such respective
Commitments. Each Lender agrees that in computing such Lender's portion of any
Borrowing to be made hereunder, the Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or lower whole dollar
amount.
SECTION 2.17. Sharing of SetoffsSECTION 2.17. Sharing of
Setoffs. Each Lender agrees that if it shall, through the exercise of a right of
banker's lien, setoff or counterclaim against the Borrower, or pursuant to, a
secured claim under Section 506 of Title 11 of the United States Code or other
security or interest arising from, or in lieu of, such secured claim, received
by such Lender under any applicable bankruptcy, insolvency or other similar law
or otherwise, or by any other means, obtain payment (voluntary or involuntary)
in respect of any Standby Loan or Loans or participations in Swingline Loans as
a result of which the unpaid principal portion of the Standby Loans or
participations in Swingline Loans shall be proportionately less than the unpaid
principal portion of the Standby Loans or participations in Swingline Loans of
any other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in the Standby Loans and participations in
Swingline Loans of such other Lender, so that the aggregate unpaid principal
amount of the Standby Loans and participations in the Standby Loans and
participations in Swingline Loans held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Standby Loans and
participations in Swingline Loans then outstanding as the principal amount of
its Standby Loans and participations in Swingline Loans prior to such exercise
of banker's lien, setoff or counterclaim or other event was to the principal
amount of all Standby Loans and participations in Swingline Loans outstanding
prior to such exercise of banker's lien, setoff or counterclaim or other event;
provided, however, that, if any such purchase or purchases or adjustments shall
be made pursuant to this Section 2.17 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation
pursuant to the foregoing arrangements deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower to such Lender by reason
thereof as fully as if such Lender had made a Standby Loan or Swingline Loan
directly to the Borrower in the amount of such participation.
SECTION 2.18. PaymentsSECTION 2.18. Payments. (a) The Borrower
shall make each payment (including principal of or interest on any Borrowing or
any Fees or other amounts but excluding principal and interest on Swingline
Loans, which shall be paid directly to the Swingline Lender except as provided
in Section 2.22(c)) hereunder and under any other Loan Document not later than
12:00 (noon), New York City time, on the date when due in dollars to the Agent
at its offices at 270 Park Avenue, New York, New York, in immediately available
funds.
(b) Whenever any payment (including principal of or interest
on any Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.19. TaxesSECTION 2.19. Taxes. (a) Any and all
payments by the Borrower hereunder shall be made, in accordance with Section
2.18, free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding taxes imposed on the Agent's or any Lender's (or
any transferee's or assignee's, including a participation holder's (any such
entity a "Transferee")) net income and franchise taxes imposed on the Agent or
any Lender (or Transferee) by the United States or any jurisdiction under the
laws of which it is organized or in which its applicable lending office is
located or any political subdivision thereof (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to the Lenders
(or any Transferee) or the Agent, (i) the sum payable shall be increased by the
amount necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.19) such
Lender (or Transferee) or the Agent (as the case may be) shall receive an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxing authority or other Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender (or Transferee)
and the Agent for the full amount of Taxes and Other Taxes (including any Taxes
or Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.19) paid by such Lender (or Transferee) or the Agent, as the case may be, and
any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted by the relevant taxing authority or other Governmental
Authority. Such indemnification shall be made within 30 days after the date any
Lender (or Transferee) or the Agent, as the case may be, makes written demand
therefor. If a Lender (or Transferee) or the Agent shall become aware that it is
entitled to receive a refund in respect of Taxes or Other Taxes, it shall
promptly notify the Borrower of the availability of such refund and shall,
within 30 days after receipt of a request by the Borrower, apply for such refund
at the Borrower's expense. If any Lender (or Transferee) or the Agent receives a
refund in respect of any Taxes or Other Taxes for which such Lender (or
Transferee) or the Agent has received payment from the Borrower hereunder it
shall promptly notify the Borrower of such refund and shall, within 30 days
after receipt of a request by the Borrower (or promptly upon receipt, if the
Borrower has requested application for such refund pursuant hereto), repay such
refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.19 with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of such Lender (or Transferee) or the Agent and without interest;
provided that the Borrower, upon the request of such Lender (or Transferee) or
the Agent, agrees to return such refund (plus penalties, interest or other
charges) to such Lender (or Transferee) or the Agent in the event such Lender
(or Transferee) or the Agent is required to repay such refund.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes withheld by the Borrower in respect of any payment to any Lender (or
Transferee) or the Agent, the Borrower will furnish to the Agent, at its address
referred to in Section 9.01, the original or a certified copy of a receipt
issued by the appropriate Governmental Authority evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.19
shall survive the payment in full of the principal of and interest on all Loans
made hereunder.
(f) Each Lender (or Transferee) which is organized outside the
United States shall deliver to the Borrower two copies of either Internal
Revenue Service Form W-8 BEN or Form W-8 ECI, or, in the case of a Lender (or
Transferee) claiming exemption from U.S. Federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of "portfolio interest", a
Form W-8, or any subsequent versions thereof or successors thereto (and, if such
Non-U.S. Lender delivers a Form W-8, a certificate representing that such
Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not
a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Code) of the Borrower and is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Code)) properly
completed and duly executed by such Lender (or Transferee) establishing that
such payment is totally exempt from, or is eligible for a reduced rate of,
United States Federal withholding tax. Such forms shall be delivered by each
Lender organized outside the United States on or before the date it becomes a
party to this Agreement (or, in the case of a Transferee that is a participation
holder, on or before the date such participation holder becomes a Transferee
hereunder) and on or before the date, if any, such Lender changes its applicable
lending office by designating a different lending office (a "New Lending
Office"). In addition, each Lender organized outside the United States shall
deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Lender. Notwithstanding any other provision of this
Section 2.19(f), a Lender organized outside the United States shall not be
required to deliver any form pursuant to this Section 2.19(f) that it is not
legally able to deliver. Unless the Borrower and the Agent have received forms
or other documents satisfactory to them indicating that payments hereunder are
not subject to United States withholding tax or are subject to such tax at a
rate reduced by an applicable tax treaty, the Borrower or the Agent shall
withhold taxes from such payments at the applicable statutory rate in the case
of payments to or for any Lender (or Transferee) organized under the laws of a
jurisdiction outside the United States.
(g) The Borrower shall not be required to pay any additional
amounts to any Lender (or Transferee) in respect of United States Federal
withholding tax pursuant to paragraph (a) above to the extent that the
obligation to pay such additional amounts existed on the date such Lender (or
Transferee) became a party to this Agreement (or in the case of a Transferee
that is a participation holder, on the date such participation holder became a
Transferee hereunder) or would not have arisen but for a failure by such Lender
(or Transferee) to comply with the provisions of paragraph (f) above unless such
failure results from (i) a change in applicable law, regulation or official
interpretation thereof, (ii) an amendment, modification or revocation of any
applicable tax treaty or a change in official position regarding the application
or interpretation thereof, in each case after the date of the first Borrowing
(and, in the case of a Transferee, after the date of assignment or transfer) or
(iii) an assignment, participation, transfer or designation made at the request
of the Borrower; provided, however, the Borrower shall be required to pay those
amounts to any Lender (or Transferee) that it was required to pay hereunder
prior to the failure of such Lender (or Transferee) to comply with the
provisions of such paragraph (f).
(h) Any Lender (or Transferee) claiming any additional amounts
payable pursuant to this Section 2.19 shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate or document
requested by the Borrower or to change the jurisdiction of its applicable
lending office if the making of such a filing or change would avoid the need for
or reduce the amount of any such additional amounts which may thereafter accrue
and would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender (or Transferee).
SECTION 2.20. Termination or Assignment of Commitments Under
Certain
------------------------------------------------------
CircumstancesSECTION 2.20. Termination or Assignment of Commitments Under
Certain Circumstances. In the event that any Lender shall fail to pay the Agent
amounts due it pursuant to Section 2.05(i) or any Lender shall have delivered a
notice or certificate pursuant to Section 2.13 or Section 2.14, or the Borrower
shall be required to make additional payments to any Lender under Section 2.19,
the Borrower shall have the right, at its own expense, upon notice to such
Lender and the Agent, to require such Lender to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04) all its interests, rights and obligations under this Agreement to
another financial institution which shall assume such obligations; provided that
(i) no such termination or assignment shall conflict with any law, rule or
regulation or order of any Governmental Authority, (ii) the Borrower or the
assignee, as the case may be, shall pay to the affected Lender in immediately
available funds on the date of such termination or assignment the principal of
and interest accrued to the date of payment on the Loans (other than Competitive
Loans and participations in Swingline Loans) made by it hereunder and all other
amounts accrued for its account or owed to it hereunder and (iii) if a
Commitment is being assigned, the Borrower shall have received the prior written
consent of the Swingline Lender (which consent will not be unreasonably
withheld).
SECTION 2.21. Lending Offices and Lender Certificates;
Survival of IndemnitySECTION 2.21. Lending Offices and Lender Certificates;
Survival of Indemnity. To the extent reasonably possible, each Lender shall
designate an alternate lending office with respect to its Eurodollar Loans and
Fixed Rate Loans to reduce any liability of the Borrower to such Lender under
Section 2.13 or to avoid the unavailability of Eurodollar Loans under Section
2.10 or 2.14, so long as such designation is not disadvantageous to such Lender.
A good faith certificate of a Lender setting forth a reasonable basis of
computation and allocation of the amount due under Section 2.13 or 2.15 shall be
final, conclusive and binding on the Borrower in the absence of manifest error.
The amount specified in any such certificate shall be payable on demand after
receipt by the Borrower of such certificate. The obligations of the Borrower
under Sections 2.13 and 2.15 shall survive the payment of all amounts due under
any Loan Document and the termination of this Agreement.
SECTION 2.22. Swingline LoansSECTION 2.22. Swingline Loans.
(a) Subject to the terms and conditions set forth herein, the Swingline Lender
agrees to make Swingline Loans to the Borrower from time to time on and after
the date hereof and until the earlier of the Maturity Date and the termination
of the Commitments in an aggregate principal amount at any time outstanding that
will not result in (i) the aggregate principal amount of all outstanding
Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving
Credit Exposures plus the aggregate principal amount of outstanding Competitive
Loans exceeding the Total Commitment then in effect; provided that the Swingline
Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Each Swingline Loan shall bear interest at a rate
described in Section 2.08(d). Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, repay and
reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Agent of such request by telephone (confirmed by telecopy), not later than 12:00
noon, New York City time, on the day of a proposed Swingline Loan. Each such
notice shall be irrevocable and shall specify (i) the requested date of such
Swingline Loan (which shall be a Business Day), (ii) the Interest Period with
respect to the requested Swingline Loan (which may not end after the Maturity
Date), (iii) the amount of the requested Swingline Loan and (iv) the maturity of
the requested Swingline Loan (which shall be no later than five Business Days
after the date of such Swingline Loan). The Agent will promptly advise the
Swingline Lender of any such notice received from the Borrower. The Swingline
Lender shall make each Swingline Loan available to the Borrower by wire transfer
of immediately available funds to account number 987-087-8577 maintained by the
Borrower with UMB Bank, N.A. (ABA #101000695) by 3:00 p.m., New York City time,
on the requested date of such Swingline Loan. The Borrower shall have the right
at any time and from time to time to prepay any Swingline Loan, in whole or in
part, upon giving written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) to the Swingline Lender and to the
Agent before 12:00 (noon), (New York time) on the date of prepayment at the
Swingline Lender's address for notices in the Administrative Questionnaire.
(c) The Swingline Lender may by written notice given to the
Agent not later than 10:00 a.m., New York City time, on any Business Day require
the Lenders to acquire participations on such Business Day in all or a portion
of the Swingline Loans outstanding. Such notice shall specify the aggregate
amount of Swingline Loans in which Lenders will participate. Promptly upon
receipt of such notice, the Agent will give notice thereof to each Lender,
specifying in such notice such Lender's percentage of such Swingline Loan or
Loans (which shall be equal to such Lender's Pro Rata Percentage). Each Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as provided
above, to pay to the Agent, for the account of the Swingline Lender, such
Lender's percentage of such Swingline Loan or Loans. Each Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of an Event of Default or a Default or reduction or termination of
the Total Commitment, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each Lender shall comply
with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.02(c) with respect
to Loans made by such Lender (and Section 2.02(c) shall apply, mutatis mutandis,
to the payment obligations of the Lenders), and the Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Lenders. The Agent
shall notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Agent; any such amounts received by the Agent shall be promptly
remitted by the Agent to the Lenders that shall have made their payments
pursuant to this paragraph and to the Swingline Lender, as their interests may
appear. The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Borrower of any default in the payment thereof.
ARTICLE III. REPRESENTATIONS AND WARRANTIESARTICLE III. REPRESENTATIONS AND
WARRANTIES
The Borrower represents and warrants to each of the Lenders
that:
SECTION 3.01. Corporate Existence and StandingSECTION 3.01.
Corporate Existence and Standing. Each of the Borrower and the Subsidiaries is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation and has all requisite authority to
conduct its business in each jurisdiction in which its business is conducted
where the failure to so qualify would have a material adverse effect on the
Borrower or such Subsidiary.
SECTION 3.02. Authorization and ValiditySECTION 3.02.
Authorization and Validity. The Borrower has the corporate power and authority
and legal right to execute and deliver the Loan Documents and to perform its
obligations thereunder (collectively, the "Transactions"). The Transactions have
been duly authorized by proper corporate proceedings, and the Loan Documents
constitute legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency, moratorium or similar laws affecting
the enforcement of creditors' rights generally.
SECTION 3.03. No Conflict; Governmental ConsentSECTION 3.03.
No Conflict; Governmental Consent. None of the Transactions will violate any
law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Borrower or any Subsidiary or the Borrower's or any Subsidiary's
articles or certificate of incorporation or by-laws (including, without
limitation, the Interstate Commerce Commission Termination Act of 1995 (the
"Interstate Commerce Act") and the regulations promulgated thereunder) or the
provisions of any indenture, instrument or agreement to which the Borrower or
any Subsidiary is a party or is subject, or by which it, or its property, is
bound, or conflict therewith or constitute a default thereunder, or result in
the creation or imposition of any Lien in, of or on the property of the Borrower
or any Subsidiary pursuant to the terms of any such indenture, instrument or
agreement. No order, consent, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, any governmental
or public body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with the execution, delivery and
performance of, or the legality, validity, binding effect or enforceability of,
any of the Loan Documents.
SECTION 3.04. Compliance with Laws; Environmental and Safety
MattersSECTION 3.04. Compliance with Laws; Environmental and Safety Matters. (a)
The Borrower and the Subsidiaries have, to the best knowledge and belief of the
Borrower, complied in all material respects with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign government or
any instrumentality or agency thereof, having jurisdiction over the conduct of
their respective businesses or the ownership of their respective properties
(including, without limitation, the Interstate Commerce Act and the Railway
Labor Act).
(b) The Borrower and each Subsidiary has complied in all
material respects with all Federal, state, local and other statutes, ordinances,
orders, judgments, rulings and regulations relating to environmental pollution
or to environmental regulation or control or to employee health or safety.
Neither the Borrower nor any Subsidiary has received notice of any material
failure so to comply. The Borrower's and the Subsidiaries' facilities do not
manage any hazardous wastes, hazardous substances, hazardous materials, toxic
substances, toxic pollutants or substances similarly denominated, as those terms
or similar terms are used in the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response Compensation and Liability Act, the
Hazardous Materials Transportation Act, the Toxic Substance Control Act, the
Clean Air Act, the Clean Water Act or any other applicable law relating to
environmental pollution or employee health and safety, in violation in any
material respect of any law or any regulations promulgated pursuant thereto. The
Borrower is aware of no events, conditions or circumstances involving
environmental pollution or contamination or employee health or safety that could
reasonably be expected to result in material liability on the part of the
Borrower or any Subsidiary.
SECTION 3.05. Financial StatementsSECTION 3.05. Financial
Statements. (a) KCSI has heretofore furnished to the Lenders its (i)
consolidated balance sheets, statements of income, changes in stockholders'
equity and cash flows as of and for the fiscal year ended December 31, 1998,
audited by and accompanied by the opinion of Price Waterhouse, independent
public accountants, and (ii) its unaudited consolidated balance sheets and
statements of income as of and for the fiscal quarter and the three-month period
ended September 30, 1999, certified by its chief financial officer. Such
financial statements present fairly the financial condition and results of
operations of KCSI and its consolidated subsidiaries as of such dates and for
such periods. Such balance sheets and the notes thereto disclose all material
liabilities, direct or contingent, of KCSI and the Consolidated Subsidiaries as
of the dates thereof. Such financial statements were prepared in accordance with
GAAP applied on a consistent basis.
(b) KCSI has also heretofore furnished to the Lenders certain
pro forma statements and other financial information containing estimates and
projections of the future financial performance of KCSI's financial asset
management division as set forth in the Confidential Memorandum and in the KCSI
Confidential Information Memorandum (such financial statements and financial
information being collectively called the "Projections"). The Projections were
prepared in good faith using due and careful consideration and represent KCSI's
best estimates as of the date of the Projections of the financial performance of
KCSI's financial asset management division .
(c) In addition to the representations and warranties set
forth above in this Section 3.05, the Borrower has advised the Lenders that for
financial reporting purposes the Securities and Exchange Commission has taken
the position that Janus should be deconsolidated and treated as an equity
investment in the financial statements of Stilwell and KCSI. To the extent the
Securities and Exchange Commission prevails in its position or KCSI and Stilwell
concede such position with the consequence that the financial statements
previously delivered to the Lenders must be restated to conform with GAAP by
presenting Janus as an equity investment, (i) the representations set forth in
clauses (a) or (b) of this Section 3.05 shall not be deemed to be untrue in any
material respect and (ii) each reference in the Loan Documents to a
"Consolidated Subsidiary" or "Consolidated Subsidiaries" (other than in Section
6.07 hereof and the application of the defined terms used therein) shall be
deemed to include Janus and its consolidated subsidiaries. The Borrower hereby
represents and warrants to the Lenders that any such restatement of the
financial statements of KCSI or Stilwell will not materially impact KCSI's or
Stilwell's net income or earnings per share or the ability of KCSI or Stilwell
to comply with the financial covenants set forth in Section 6.07.
SECTION 3.06. No Material Adverse ChangeSECTION 3.06. No
Material Adverse Change. No
--------------------------------------------------------------------
material adverse change in the business, properties, financial condition,
prospects or results of operations of the Borrower and the Consolidated
Subsidiaries has occurred since December 31, 1998.
SECTION 3.07. Ownership of PropertiesSECTION 3.07. Ownership
of Properties. On the date hereof, each of the Borrower and the Subsidiaries has
good title, free of all Liens (other than those permitted by Section 6.02), to
all of the properties and assets reflected in its financial statements as owned
by it.
SECTION 3.08. SubsidiariesSECTION 3.08. Subsidiaries. Schedule
3.08 contains an accurate list of all of (a) the significant joint ventures and
(b) Subsidiaries of the Borrower which have any assets or operations, in each
case on the date hereof, setting forth their respective jurisdictions of
organization and the percentage of their respective ownership interest held by
the Borrower or other Subsidiaries. All of the issued and outstanding shares of
capital stock of such Subsidiaries have been duly authorized and issued and are
fully paid and nonassessable.
SECTION 3.09. Litigation; Contingent ObligationsSECTION 3.09.
Litigation; Contingent Obligations. Except as set forth in Schedule 3.09 or as
disclosed in KCSI's Annual Report on Form 10-K dated December 31, 1998 filed
with the Securities and Exchange Commission, (i) there is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Borrower or any Consolidated Subsidiary that (A) is required to be disclosed in
any filing with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended, or (B) might materially adversely
affect the business, properties, financial condition, prospects or results of
operations of the Borrower or the ability of the Borrower to perform its
obligations under the Loan Documents and (ii) neither the Borrower nor any
Consolidated Subsidiary has any material contingent obligations.
SECTION 3.10. Material AgreementsSECTION 3.10. Material
Agreements. Neither the Borrower nor any Subsidiary is a party to any agreement
or instrument or subject to any charter or other corporate restriction
materially and adversely affecting its business, properties or assets,
operations or condition (financial or otherwise). Neither the Borrower nor any
Subsidiary is in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in (a) any agreement to which
it is a party, which default might have a material adverse effect on the
consolidated business, properties, financial condition, prospects or results of
operations of the Borrower and the Consolidated Subsidiaries or (b) any
agreement or instrument evidencing or governing Indebtedness which default would
allow the holders thereof to cause such Indebtedness to become due prior to its
stated maturity, result in any mandatory repayment, prepayment or redemption
thereof, or require that any offer be made to effect any repurchase or
redemption thereof.
SECTION 3.11. Regulation USECTION 3.11. Regulation U. Margin
Stock constitutes less than 25% of those assets of the Borrower and the
Subsidiaries that are subject to any limitation on sale, pledge, or other
restriction hereunder.
SECTION 3.12. Investment Company Act; Public Utility Holding
Company ActSECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. (a) Neither the Borrower nor any Subsidiary is an "investment company" or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(b) Neither the Borrower nor any Subsidiary is a "holding
company" or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 3.13. Use of ProceedsSECTION 3.13. Use of Proceeds.
The Borrower will use the proceeds of the Loans only for the purposes set forth
in the recitals to this Agreement.
----------------------------------------------
SECTION 3.14. TaxesSECTION 3.14. Taxes. The Borrower and the
Consolidated Subsidiaries have filed all United States federal tax returns and
all other tax returns which are required to be filed and have paid all taxes due
pursuant to said returns or pursuant to any assessment received by the Borrower
or any Consolidated Subsidiary, including without limitation all federal and
state withholding taxes and all taxes required to be paid pursuant to applicable
law, except such taxes, if any, as are being contested in good faith and as to
which adequate reserves have been provided. The United States income tax returns
of the Borrower and the Consolidated Subsidiaries have been audited by the
Internal Revenue Service through the fiscal year ended December 31, 1989. No tax
Liens have been filed, and no claims are being asserted with respect to any such
taxes (other than Liens and claims which are being contested in good faith by
appropriate proceedings). The charges, accruals and reserves on the books of the
Borrower and the Consolidated Subsidiaries in respect of any taxes or other
governmental charges are adequate.
SECTION 3.15. Accuracy of InformationSECTION 3.15. Accuracy of
Information. No information, exhibit or report furnished by KCSI or any
subsidiary of KCSI to the Agent or to any Lender in connection with the
negotiation of the Loan Documents contained any material misstatement of fact or
omitted to state a material fact or any fact necessary to make the statements
contained therein not misleading.
SECTION 3.16. Employee Benefit PlansSECTION 3.16. Employee
Benefit Plans. The Unfunded Liabilities of all Plans do not in the aggregate
exceed $5,000,000. Each Plan complies in all material respects with all
applicable requirements of law and regulations, no Reportable Event has occurred
or is reasonably expected to occur with respect to any Plan and neither the
Borrower nor any other member of the Controlled Group has (i) taken any steps to
terminate any Plan, (ii) initiated any steps to withdraw from any Plan or (iii)
incurred any Withdrawal Liability.
SECTION 3.17. No Undisclosed Dividend RestrictionsSECTION
3.17. No Undisclosed Dividend Restrictions. Except as set forth in Schedule 3.17
and except for limitations on the payment of dividends under applicable law,
none of the Subsidiaries is subject to any agreement, amendment, covenant or
understanding that directly or indirectly (through the application of financial
covenants or otherwise) prohibits the ability of such entity to declare or pay
dividends.
SECTION 3.18. Year 2000SECTION 3.18. Year 2000. There has not
occurred, and the Borrower does not expect that there will occur, any material
disruption in the operations or business systems of the Borrower or its
Subsidiaries resulting from the inability of computer systems of the Borrower
and its Subsidiaries or equipment containing embedded microchips to recognize or
properly process dates in or following the year 2000.
ARTICLE IV. CONDITIONS OF LENDING AND THE AAA AGREEMENTARTICLE IV. CONDITIONS
OF LENDING AND THE AAA AGREEMENT
The obligations of the Lenders to make Loans hereunder are
subject to the satisfaction of the following conditions:
SECTION 4.01. All BorrowingsSECTION 4.01. All Borrowings.
On the date of each Borrowing, including each Borrowing in which Loans are
refinanced with new Loans as contemplated by Section 2.05:
--------------------------------------------
(a) The Agent shall have received a notice of such Borrowing
as required by Section 2.03 or Section 2.04, as applicable, or in the
case of a Borrowing of a Swingline Loan, the Swingline Lender and the
Agent shall have received a notice requesting such Swingline Loan as
requested by Section 2.22.
(b) The representations and warranties set forth in Article
III hereof (except, in the case of a refinancing of a Standby Borrowing
with a new Standby Borrowing that does not increase the aggregate
principal amount of the Loans of any Lender outstanding, the
representations set forth in Sections 3.06 and 3.09(i)) shall be true
and correct on and as of the date of such Borrowing with the same
effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) At the time of and immediately after such Borrowing, no
Event of Default or Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date of such Borrowing as to the matters specified in
paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. First BorrowingSECTION 4.02. First Borrowing.
On the date hereof:
----------------------------------------------
(a) The Agent shall have received a favorable written opinion
of Sonnenschein Nath & Rosenthal, counsel to the Borrower, to the
effect set forth in Exhibit D hereto, dated the date hereof and
addressed to the Lenders. The Borrower hereby instructs such counsel to
deliver such opinion to the Agent.
(b) All legal matters incident to this Agreement and the
Borrowings hereunder shall be satisfactory to the Lenders and to
Cravath, Swaine & Moore, counsel for the Agent.
(c) The Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments
thereto, of the Borrower, certified as of a recent date by the
Secretary of State of the State of Delaware and a certificate as to the
good standing of the Borrower as of a recent date, from such Secretary
of State; (ii) a certificate of the Secretary or an Assistant Secretary
of the Borrower dated the date hereof and certifying (A) that attached
thereto is a true and complete copy of the by-laws of the Borrower as
in effect on the date hereof and at all times since a date prior to the
date of the resolutions described in clause (B) below, (B) that
attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of the Borrower authorizing the
execution, delivery and performance of the Loan Documents and the
borrowings hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that the
certificate or articles of incorporation of the Borrower have not been
amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above,
and (D) as to the incumbency and specimen signature of each officer
executing any Loan Document or any other document delivered in
connection herewith on behalf of the Borrower; (iii) a certificate of
another officer as to the incumbency and specimen signature of the
Secretary or Assistant Secretary executing the certificate pursuant to
(ii) above; and (iv) such other documents as the Lenders or Cravath,
Swaine & Moore, counsel for the Agent, may reasonably request.
(d) The Agent shall have received a certificate, dated the
date hereof and signed by a Financial Officer of the Borrower,
confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 4.01.
(e) The Agent shall have received all Fees and other amounts
due and payable on or prior to the date hereof.
(f) There shall be no litigation, actual or threatened, that
in the reasonable judgment of the Agent would (i) be likely to affect
materially and adversely the business, assets, condition (financial or
otherwise) or prospects of KCSI or Stilwell or (ii) be materially
inconsistent with the assumptions underlying the pro forma financial
information and projections previously delivered to the Agent and the
Lenders pursuant to Section 3.05(b).
(g) No Event of Default or Default (each as defined in the
1999 Credit Agreement) shall have occurred and be continuing.
SECTION 4.03. AAA AgreementSECTION 4.03. AAA Agreement. On the
Assumption Date, each condition set forth in Section 4 of the AAA Agreement
shall have been satisfied or waived by the Required Lenders. Execution of the
AAA Agreement shall be deemed to constitute a representation and warranty by
Stilwell on the Assumption Date as to the matters specified in paragraphs (b)
and (c) of Section 4.01 hereof.
ARTICLE V. AFFIRMATIVE COVENANTSARTICLE V. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Lender that, until
the Commitments have expired or been terminated and the principal of or interest
on each Loan, any Fees or any other expenses or amounts payable under any Loan
Document shall have been paid in full, unless the Required Lenders shall
otherwise consent in writing:
SECTION 5.01. Conduct of Business and Maintenance of
PropertiesSECTION 5.01. Conduct of Business and Maintenance of Properties. (a)
The Borrower will, and will cause each Significant Subsidiary to, carry on and
conduct its business in substantially the same manner and in substantially the
same fields of enterprise as it is presently conducted and to do all things
necessary to remain duly incorporated, validly existing and in good standing as
a domestic corporation in its jurisdiction of incorporation and maintain all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted; provided that if the Spin-Off is completed, KCSI will,
and will cause each Subsidiary to, cause the Spin-Off to be completed (i) in
accordance with applicable law, (ii) as disclosed in Stilwell's Form 10
previously delivered to the Agent and (iii) on terms and with results consistent
with the pro forma financial information previously delivered to the Agent and
the Lenders.
(b) The Borrower will, and will cause each Significant
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
their properties material to the conduct of their business in good repair,
working order and condition, and make all necessary and proper repairs, renewals
and replacements so that their businesses carried on in connection therewith may
be properly conducted at all times.
SECTION 5.02. InsuranceSECTION 5.02. Insurance. The Borrower
will, and will cause each Consolidated Subsidiary to, maintain with financially
sound and reputable insurance companies insurance on all their property in such
amounts and covering such risks as is consistent with sound business practice
and customary with companies engaged in similar lines of business, and the
Borrower will furnish to any Lender upon request full information as to the
insurance carried.
SECTION 5.03. Compliance with Laws and TaxesSECTION 5.03.
Compliance with Laws and Taxes. (a) The Borrower will, and will cause each
Consolidated Subsidiary to, comply in all material respects with all laws
(including, without limitation, ERISA, the Interstate Commerce Act and the Fair
Labor Standards Act, as amended), rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject.
(b) The Borrower will, and will cause each Consolidated
Subsidiary to, pay when due all taxes, assessments and governmental charges and
levies upon it or its income, profits or property, except those which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves have been set aside.
SECTION 5.04. Financial Statements, Reports, etc.SECTION 5.04.
Financial Statements, Reports, etc. The Borrower will maintain, for itself and
each Consolidated Subsidiary, a system of accounting established and
administered in accordance with GAAP and will furnish to the Agent and each
Lender:
(a) within 105 days after the close of each of its fiscal
years, an unqualified (except for qualifications relating to changes in
accounting principles or practices reflecting changes in GAAP and
required or approved by the Borrower's independent certified public
accountants) audit report certified by independent certified public
accountants, of nationally recognized standing, prepared in accordance
with GAAP on a consolidated basis for itself and the Consolidated
Subsidiaries, including balance sheets as of the end of such period and
related statements of income and changes in stockholders' equity and
cash flows, accompanied by a certificate of said accountants that, in
the course of their examination necessary for their certification of
the foregoing, they have obtained no knowledge of any Default or Event
of Default, or if, in the opinion of such accountants, any Default or
Event of Default shall exist, stating the nature and status thereof;
(b) within 60 days after the close of each of the first three
quarterly periods of each of its fiscal years, for itself and the
Consolidated Subsidiaries, unaudited consolidated balance sheets as at
the close of each such period, consolidated statements of income and a
consolidated statement of cash flows for the period from the beginning
of such fiscal year to the end of such quarter, all certified by its
chief financial officer;
(c) together with the financial statements required hereunder,
a compliance certificate in substantially the form of Exhibit E signed
by its chief financial officer showing the calculations necessary to
determine compliance with this Agreement and stating that no Default or
Event of Default exists, or if any Default or Event of Default exists,
stating the nature and status thereof;
(d) as soon as possible and in any event within 10 days after
any Responsible Officer of the Borrower knows or has reason to know
that (i) any Reportable Event has occurred with respect to any Plan,
(ii) any Withdrawal Liability has been incurred with respect to any
Multiemployer Plan or (iii) the Borrower or any member of the
Controlled Group has received any notice concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is,
or is expected to be, insolvent or in reorganization within the meaning
of Title IV of ERISA, a statement, signed by the chief financial
officer of the Borrower, describing such Reportable Event, Withdrawal
Liability or notice and the action which the Borrower proposes to take
with respect thereto;
(e) as soon as possible and in any event within 10 days after
receipt by the Borrower, a copy of (i) any notice or claim to the
effect that the Borrower or any Subsidiary is or may be liable to any
person as a result of the release by the Borrower, any of the
Subsidiaries, or any other person of any toxic or hazardous waste or
substance into the environment or that all or any of its properties is
subject to an Environmental Lien and (ii) any notice alleging any
violation of any Federal, state or local environmental, health or
safety law or regulation by the Borrower or any Subsidiary, which
would, in the case of either of the preceding clauses (i) and (ii),
have a material adverse effect upon the operations of the Borrower and
the Consolidated Subsidiaries, taken as a whole;
(f) promptly upon the furnishing thereof to the shareholders
of the Borrower, copies of all financial statements, reports and proxy
statements so furnished;
(g) promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular
reports which the Borrower or any Consolidated Subsidiary files with
the Securities and Exchange Commission or financial reports material to
the interests of the Lenders or to the ability of the Borrower to
perform its obligations under the Loan Documents and filed by any of
them with the STB; and
(h) such other information (including financial information)
as the Agent or any Lender may from time to time reasonably request.
SECTION 5.05. Other NoticesSECTION 5.05. Other Notices. The
Borrower will, and will cause each Subsidiary to, give prompt notice in writing
to the Lenders of the occurrence of any Default or Event of Default and of any
other development, financial or otherwise, which might materially adversely
affect its business, properties or affairs or the ability of the Borrower to
repay the Obligations.
SECTION 5.06. Access to Properties and InspectionsSECTION
5.06. Access to Properties and Inspections. The Borrower will, and will cause
each Consolidated Subsidiary to, permit the Agent and the Lenders to make
reasonable inspections of the properties, corporate books and financial records
of the Borrower and each Consolidated Subsidiary, to make reasonable
examinations and copies of the books of accounts and other financial records of
the Borrower and each Consolidated Subsidiary, and to discuss the affairs,
finances and accounts of the Borrower and each Consolidated Subsidiary with, and
to be advised as to the same by, their respective officers at such reasonable
times and intervals as the Lenders may designate; provided that (a) any
inspection by any Lender shall be at such Lender's own expense and (b) the
Lenders shall coordinate the timing of their inspections through the Agent.
SECTION 5.07. Use of ProceedsSECTION 5.07. Use of Proceeds.
The Borrower will, and will cause each of the Subsidiaries to, use the proceeds
of the Loans only for the purposes set forth in the recitals to this Agreement.
The Borrower will not, nor will it permit any Subsidiary to, use any of the
proceeds of the Loans (a) for any purpose that entails a violation of, or that
is inconsistent with, the provisions of the Regulations of the Board including
Regulation U or X or (b) to make any acquisition for which the board of
directors of the target company has not given its consent or approval.
ARTICLE VI. NEGATIVE COVENANTSARTICLE VI. NEGATIVE COVENANTS
The Borrower covenants and agrees with each Lender and the
Agent that, until the Commitments have expired or been terminated and the
principal of or interest on each Loan, any Fees or any other expenses or amounts
payable under any Loan Document shall have been paid in full, unless the
Required Lenders shall otherwise consent in writing:
SECTION 6.01. IndebtednessSECTION 6.01. Indebtedness.
(a) The Borrower will not permit any Subsidiary to incur, create or suffer to
exist any Indebtedness, except:
----------------------------------------
(i) Indebtedness (secured by Liens) existing on the date
hereof and described in Schedule 6.01;
(ii) Indebtedness of the Subsidiaries incurred to finance all
or a portion of the purchase price of assets acquired in the ordinary
course of their railroad transportation or financial services
businesses which Indebtedness is secured solely by a Lien on the assets
being acquired provided that such Indebtedness would not cause a
Default or an Event of Default under any other Section of this
Agreement;
(iii) Attributable Debt permitted under Section 6.03;
(iv) other Indebtedness of the Subsidiaries not secured by any
Liens and incurred in the ordinary course of business and refinancings
thereof, in an aggregate principal amount at any one time outstanding
not to exceed 25% of Consolidated Net Worth at such time, provided that
such Indebtedness would not cause a Default or an Event of Default
under any other Section of this Agreement; and
(v) Guarantees of the Obligations by any Subsidiary in favor
of the Agent and the Lenders as required under paragraph (c) below.
(b) The Borrower shall not incur, create or suffer to exist
any Indebtedness ("Subordinated Indebtedness") that by its terms is subordinated
in right of payment to any other indebtedness, unless the Obligations constitute
senior indebtedness that is entitled, to the satisfaction of the Required
Lenders, to the benefits of the subordination provisions of such Subordinated
Indebtedness.
(c) The Borrower will not permit (i) any Significant
Subsidiary to Guarantee any Indebtedness of the Borrower or (ii) any Significant
Subsidiary to Guarantee any Indebtedness Guaranteed by the Borrower, unless, in
the case of each of the preceding clauses (i) and (ii), prior thereto such
Significant Subsidiary shall have executed and delivered to the Agent, for the
benefit of the Lenders, an unconditional Guarantee with respect to the
Obligations satisfactory in form and substance to the Agent.
SECTION 6.02. LiensSECTION 6.02. Liens. The Borrower will not,
nor will it permit any Subsidiary to, create, incur, or suffer to exist any
Environmental Lien securing clean-up costs or fines in excess of $25,000,000 in
aggregate principal amount except for Environmental Liens that are being
contested in good faith by appropriate proceedings and the enforcement of which
is stayed. The Borrower shall at all times assure that any Liens on its assets
(other than Liens permitted under clauses (a) through (f) below) shall be for
the equal and ratable benefit of the Lenders and the Agent. The Borrower will
not, nor will it permit any Subsidiary to, create, incur, or suffer to exist any
other Lien in, of or on the property (now or hereafter acquired), or on any
income or revenues or rights in respect of any thereof, of the Borrower or any
Subsidiary, except:
(a) Liens for taxes, assessments or governmental charges or
levies on its property if the same shall not at the time be delinquent
or thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings;
(b) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary
course of business that secure payment of obligations not more than 60
days past due except for such Liens as are being contested in good
faith by appropriate proceedings;
(c) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation;
(d) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and that do not in any material way affect the marketability of the
same or interfere with the use thereof in the business of the Borrower
or the Consolidated Subsidiaries;
(e) Liens existing on the date hereof and described in
Schedule 6.02 hereto; provided that such Liens shall secure only those
obligations that they secure on the date hereof;
(f) Liens, granted on property or assets solely to secure
Indebtedness evidencing all or a portion of the purchase price of
property or assets or any refinancing thereof provided that such Lien
attaches only to the property or assets being acquired and that any
such refinancing does not increase the aggregate principal amount of
such Indebtedness but only to the extent that such Indebtedness would
not result in a Default or an Event of Default under any other Section
of this Agreement; and
(g) Liens, in addition to Liens permitted under the above
clauses (a) through (f), on property or assets having on the date of
determination an aggregate depreciated book value (determined in
accordance with GAAP) that, when taken together with the aggregate
amount of all Attributable Debt in connection with all Sale and
Leaseback Transactions of the Borrower and the Subsidiaries (other than
Sale and Leaseback Transactions consummated prior to the date hereof or
pursuant to the last sentence of Section 6.03), does not exceed 15% of
Consolidated Net Worth, so long as any such Liens on property or assets
of the Borrower (as opposed to assets solely of the Subsidiaries) shall
also be for the pari passu benefit of the Lenders as provided above.
SECTION 6.03. Sale and Lease-Back TransactionsSECTION 6.03.
Sale and Lease-Back Transactions. The Borrower will not, and will not permit any
Subsidiary to, enter into any arrangement, directly or indirectly, with any
person whereby it shall sell or transfer any property, real or personal, used or
useful in its business, whether now owned or hereafter acquired, and thereafter
rent or lease such property or other property which it intends to use for
substantially the same purpose or purposes as the property being sold or
transferred (a "Sale and Leaseback Transaction"); provided that the Borrower or
any Subsidiary may enter into any Sale and Leaseback Transaction if (a) at the
time of such Transaction no Default or Event of Default shall have occurred and
be continuing, (b) the proceeds from the sale of the subject property shall be
at least equal to its fair market value on the date of such sale and (c) the
aggregate amount of all Attributable Debt in connection with all Sale and
Leaseback Transactions of the Borrower and the Subsidiaries (other than Sale and
Leaseback Transactions consummated prior to the date hereof or pursuant to the
last sentence of this Section 6.03), when taken together with the depreciated
book value (determined in accordance with GAAP) of all assets or property on
which there shall exist any Liens pursuant to Section 6.02(g), does not exceed
15% of Consolidated Net Worth on any date of determination. Notwithstanding the
foregoing, the Borrower or any Subsidiary may enter into any Sale and Leaseback
Transaction between the Borrower or any Subsidiary and the joint venture
involving Southern Capital Corporation, LLC.
SECTION 6.04. Mergers, Consolidations and Transfers of
AssetsSECTION 6.04. Mergers, Consolidations and Transfers of Assets. The
Borrower will not, and will not permit any Subsidiary to, merge into or
consolidate with any other person, or permit any other person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or any substantial part of its
assets (whether now owned or hereafter acquired) or any capital stock of any
Subsidiary, except that (a) the Borrower and any Subsidiary may sell assets in
the ordinary course of business, (b) subject to Section 5.01(a), the Borrower
may complete the Spin-Off; provided, that the Borrower will not complete the
Spin-Off unless the Assumption shall have been completed; and (c) if at the time
thereof and immediately after giving effect thereto no Event of Default or
Default shall have occurred and be continuing (i) any wholly owned Subsidiary
may merge into the Borrower in a transaction in which the Borrower is the
surviving corporation, (ii) any wholly owned Subsidiary may merge into or
consolidate with any other wholly owned Subsidiary in a transaction in which the
surviving entity is a wholly owned Subsidiary and no person other than the
Borrower or a wholly owned Subsidiary receives any consideration and (iii) the
Borrower and the Subsidiaries may sell, transfer, lease or dispose of assets out
of the ordinary course of business having depreciated book values (determined in
accordance with GAAP) that in the aggregate for all assets so disposed of during
the term of this Agreement do not exceed 15% of Consolidated Net Worth on any
date of determination to any other person.
SECTION 6.05. Transactions with AffiliatesSECTION 6.05.
Transactions with Affiliates. The Borrower will not, and will not permit any
Subsidiary to, sell or transfer any property or assets to, or purchase or
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates (other than any Subsidiary), except
that the Borrower or any Subsidiary may engage in any of the foregoing
transactions in the ordinary course of business at prices and on terms and
conditions which, taken as a whole, are not less favorable to the Borrower or
such Subsidiary than would prevail in an arm's-length transaction with unrelated
third parties.
SECTION 6.06. Certain Other AgreementsSECTION 6.06. Certain
Other Agreements. The Borrower will not, and will not permit any Subsidiary to
(i) be bound by or enter into any agreement, amendment, covenant, understanding
or revision to any agreement which directly or indirectly (through the
application of financial covenants or otherwise) prohibits or restricts the
ability of such Subsidiary to declare and pay dividends or make any loans or
advances or any other distribution to the Borrower (except for limitations on
the payment of dividends set forth in Schedule 3.17 or imposed by applicable
law); or (ii) be bound by or enter into any agreement, indenture, contract,
instrument, amendment or lease containing any covenant restricting the
incurrence of Indebtedness or governing the Borrower's and the Subsidiaries'
financial condition if such covenant is more restrictive than the analogous
provision of this Agreement unless (A) the Borrower has delivered a copy of such
document to the Agent not less than 10 Business Days prior to executing the same
and (B) the Borrower enters into an amendment to this Agreement to add the more
restrictive covenant or to conform the analogous provision of this Agreement to
such more restrictive covenant.
SECTION 6.07. Certain Financial CovenantsSECTION 6.07.
Certain Financial Covenants. The Borrower will not:
----------------------------------------------------------------------
(a) permit the ratio of Consolidated Total Indebtedness to the
sum of Consolidated Total Indebtedness and Consolidated Net Worth to exceed .60
at any time; or
(b) permit the assets of the Subsidiaries, other than the
Significant Subsidiaries, to represent in the aggregate at any time more than
25% of Consolidated Total Assets.
SECTION 6.08. Margin StockSECTION 6.08. Margin Stock. The
Borrower will not, nor will it permit any Subsidiary to, own or acquire Margin
Stock such that at any time Margin Stock of the Borrower and its Subsidiaries
represents more than 25% of the value of the assets of the Borrower and its
Subsidiaries on a consolidated basis that are subject to Section 6.02 or Section
6.04.
ARTICLE VII. EVENTS OF DEFAULTARTICLE VII. EVENTS OF DEFAULT
In case of the happening of any of the following events
("Events of Default"):
(a) any representation or warranty made or deemed made by or
on behalf of the Borrower or any Subsidiary to the Lenders or the Agent
under or in connection with this Agreement, any Loan, or any
certificate or information delivered in connection with this Agreement
or any other Loan Document shall be materially false on the date as of
which made;
(b) nonpayment of principal of any Loan when due;
(c) nonpayment of interest upon any Loan or of any Fee or
other Obligations (other than an amount referred to in (b) above) under
any of the Loan Documents within five days after the same becomes due;
(d) the breach by the Borrower of any of the terms or
provisions of Section 5.07 or in Article VI;
(e) the breach by the Borrower (other than a breach which
constitutes an Event of Default under (a), (b), (c) or (d) above) of
any of the terms or provisions of this Agreement which is not remedied
within fifteen days after written notice from the Agent or any Lender;
(f) failure of the Borrower or any Subsidiary to pay any
Indebtedness in excess of $10,000,000 (or its equivalent in any other
currency) in aggregate principal amount when due; or the default by the
Borrower or any Subsidiary in the performance of any term, provision or
condition contained in any agreement under which any Indebtedness in
excess of $10,000,000 (or its equivalent in any other currency) in
aggregate principal amount was created or is governed, the effect of
which is to permit the holder or holders of such Indebtedness to cause
such Indebtedness to become due prior to its stated maturity; or the
default by the Borrower or any Subsidiary in the performance of any
term, provision or condition contained in any agreement under which any
Indebtedness in excess of $10,000,000 (or its equivalent in any other
currency) in aggregate principal amount was created or is governed, the
effect of which is to cause the holder or holders of such Indebtedness
or a trustee or other representative of such holders to cause such
Indebtedness to become due prior to its stated maturity; or any
Indebtedness in excess of $10,000,000 (or its equivalent in any other
currency) in aggregate principal amount shall be declared to be due and
payable or required to be prepaid (other than by a regularly scheduled
payment) prior to the stated maturity thereof;
(g) the Borrower or any Specified Subsidiary shall (i) have an
order for relief entered with respect to it under the Federal
Bankruptcy Code, (ii) not pay, or admit in writing its inability to
pay, its debts generally as they become due, (iii) make a general
assignment for the benefit of creditors, (iv) apply for, seek, consent
to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial part
of its property, (v) institute any proceeding seeking an order for
relief under the Federal Bankruptcy Code or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (vi) take any corporate action to authorize or effect any
of the foregoing actions set forth in this paragraph (g) or (vii) fail
to contest in good faith any appointment or proceeding described in the
following paragraph (h);
(h) without the application, approval or consent of the
Borrower or any Subsidiary, a receiver, trustee, examiner, liquidator
or similar official shall be appointed for the Borrower or any
Specified Subsidiary or any substantial part of its property, or a
proceeding described in clause (v) of the preceding paragraph (g) shall
be instituted against the Borrower or any Specified Subsidiary and such
appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of 60 consecutive days;
(i) any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or control of
all of the property of the Borrower or any Subsidiary or an amount of
such property or assets having depreciated book values (determined in
accordance with GAAP) that in the aggregate for all properties and
assets so appropriated or taken during the term of this Agreement
exceed 15% of Consolidated Net Worth on any date of determination;
(j) the Borrower or any Subsidiary shall fail within 30 days
to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $5,000,000 (or its equivalent in any
other currency) that is not stayed on appeal or otherwise being
appropriately contested in good faith;
(k) the Unfunded Liabilities of all Plans shall exceed in the
aggregate $5,000,000, or any Reportable Event shall occur in connection
with any Plan or any Withdrawal Liability in excess of $2,500,000 shall
be incurred with respect to any Multiemployer Plan or the Borrower or
any member of the Controlled Group has received any notice concerning
the imposition of Withdrawal Liability in excess of $2,500,000 or a
determination that a Multiemployer Plan with respect to which the
potential Withdrawal Liability of the Borrower or any member of the
Controlled Group would exceed $2,500,000 is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of
ERISA;
(l) a Change in Control shall have occurred; or
(m) prior to the completion of the Spin-Off, the Borrower
shall fail to be the beneficial owner of at least (i) 90% of the
outstanding voting securities of KCSR, (ii) 80% of the outstanding
voting securities of Janus, (iii) 80% of the outstanding voting
securities of Berger or (iv) 100% of the outstanding voting securities
of Stilwell;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Agent, at the request of the Required Lenders,
shall, by notice to the Borrower, take either or both of the following actions,
at the same or different times: (i) terminate forthwith the Commitments and (ii)
declare the Loans then outstanding to be forthwith due and payable in whole or
in part, whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document,
shall become forthwith due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
ARTICLE VIII. THE AGENTARTICLE VIII. THE AGENT
In order to expedite the transactions contemplated by this
Agreement, The Chase Manhattan Bank is hereby appointed to act as Agent on
behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the
Agent to take such actions on behalf of such Lender or holder and to exercise
such powers as are specifically delegated to the Agent by the terms and
provisions hereof and of the other Loan Documents, together with such actions
and powers as are reasonably incidental thereto. The Agent is hereby expressly
authorized by the Lenders, without hereby limiting any implied authority, (a) to
receive on behalf of the Lenders all payments of principal of and interest on
the Loans and all other amounts due to the Lenders hereunder, and promptly to
distribute to each Lender its proper share of each payment so received; (b) to
give notice on behalf of each of the Lenders to the Borrower of any Event of
Default specified in this Agreement of which the Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to distribute to each
Lender copies of all notices, financial statements and other materials delivered
by the Borrower pursuant to this Agreement as received by the Agent.
Neither the Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower of any of the terms, conditions, covenants or agreements contained in
any Loan Document. The Agent shall not be responsible to the Lenders for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement or any other Loan Documents or other instruments or agreements. The
Agent shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the Required Lenders
and, except as otherwise specifically provided herein, such instructions and any
action or inaction pursuant thereto shall be binding on all the Lenders. The
Agent shall, in the absence of knowledge to the contrary, be entitled to rely on
any instrument or document believed by it in good faith to be genuine and
correct and to have been signed or sent by the proper person or persons. Neither
the Agent nor any of its directors, officers, employees or agents shall have any
responsibility to the Borrower on account of the failure of or delay in
performance or breach by any Lender of any of its obligations hereunder or to
any Lender on account of the failure of or delay in performance or breach by any
other Lender or the Borrower of any of their respective obligations hereunder or
under any other Loan Document or in connection herewith or therewith. The Agent
may execute any and all duties hereunder by or through agents or employees and
shall be entitled to rely upon the advice of legal counsel selected by it with
respect to all matters arising hereunder and shall not be liable for any action
taken or suffered in good faith by it in accordance with the advice of such
counsel.
The Lenders hereby acknowledge that the Agent shall be under
no duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent
as provided below, the Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right, after consultation with the Borrower, to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice
of its resignation, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent which shall be a bank with an office in New York, New
York, having a combined capital and surplus of at least $50,000,000 or an
Affiliate of any such bank. Upon the acceptance of any appointment as Agent
hereunder by a successor bank, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent and the
retiring Agent shall be discharged from its duties and obligations hereunder.
After the Agent's resignation hereunder, the provisions of this Article and
Section 9.05 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Agent.
With respect to the Loans made by it hereunder, the Agent in
its individual capacity and not as Agent shall have the same rights and powers
as any other Lender and may exercise the same as though it were not the Agent,
and the Agent and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Agent.
Each Lender agrees (i) to reimburse the Agent, on demand, in
the amount of its pro rata share (based on its Commitment hereunder or, if the
Total Commitment shall be terminated, the percentage it holds of the aggregate
outstanding principal amount of the Loans) of any expenses incurred for the
benefit of the Lenders by the Agent, including counsel fees and compensation of
agents and employees paid for services rendered on behalf of the Lenders, which
shall not have been reimbursed by the Borrower and (ii) to indemnify and hold
harmless the Agent and any of its directors, officers, employees or agents, on
demand, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against it in its capacity as the
Agent or any of them in any way relating to or arising out of this Agreement or
any other Loan Document or any action taken or omitted by it or any of them
under this Agreement or any other Loan Document, to the extent the same shall
not have been reimbursed by the Borrower; provided that no Lender shall be
liable to the Agent for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or wilful misconduct of the Agent or any of
its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and
without reliance upon the Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX. MISCELLANEOUSARTICLE IX. MISCELLANEOUS
SECTION 9.01. NoticesSECTION 9.01. Notices. Notices and other
communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed or sent by graphic scanning or other
telegraphic communications equipment of the sending party, as follows:
(a) if to the Borrower, to it at 114 West 11th Street, Kansas
City, Missouri 64105-1808, Attention of the Vice President - Finance
(Telecopy No. (816) 983-1192), with a copy to the Vice President and
Secretary (Telecopy No. (816) 983-1192);
(b) if to the Agent, to it at The Chase Manhattan Bank, Loan
and Agency Services Group, One Chase Manhattan Plaza, 8th Floor, New
York, NY 10081, Attention of Margaret Swales (Telecopy No. (212)
552-5662) for Standby Borrowings and Chris Consomer (Telecopy No. (212)
552-5627) for Competitive Borrowings, with a copy to Chase Securities
Inc., 10 South LaSalle Street Chicago, IL 60603, Attention of Deborah
K. Welles (Telecopy No. (312) 807-4077); and
(c) if to the Swingline Lender, to it at The Chase Manhattan
Bank, Attention of Margaret Swales (Telecopy No. (212) 552-5662); and
(d) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or other telegraphic communications equipment of the sender, or on the
date five Business Days after dispatch by certified or registered mail if
mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 9.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 9.01.
SECTION 9.02. Survival of AgreementSECTION 9.02. Survival of
Agreement. All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the Lenders and shall
survive the making by the Lenders of the Loans, regardless of any investigation
made by the Lenders or on their behalf, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
Fee or any other amount payable under this Agreement or any other Loan Document
is outstanding and unpaid and so long as the Commitments have not been
terminated.
SECTION 9.03. Binding EffectSECTION 9.03. Binding Effect. This
Agreement shall become effective when it shall have been executed by the
Borrower and the Agent and when the Agent shall have received copies hereof
which, when taken together, bear the signatures of each Lender, and thereafter
shall be binding upon and inure to the benefit of the Borrower, the Agent and
each Lender and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior consent of all the Lenders. Delivery of an executed
signature page of any Loan Document by facsimile transmission shall be effective
as delivery of a manually executed counterpart thereof.
SECTION 9.04. Successors and AssignsSECTION 9.04. Successors
and Assigns. (a) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party; and all covenants, promises and agreements by or on
behalf of the Borrower, the Agent or the Lenders that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment and the Standby Loans at the time owing to
it); provided, however, that (i) except in the case of an assignment to a Lender
or an Affiliate of such Lender, the Borrower and the Agent (and, in the case of
an assignment of all or a portion of a Commitment or any Lender's obligations in
respect of its Swingline Exposure, the Swingline Lender must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld), (ii) each such assignment shall be of a constant, and not a varying,
percentage of all the assigning Lender's rights and obligations under this
Agreement, (iii) the amount of the Commitment of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Agent) shall not be less
than $10,000,000 (and shall be an integral multiple of $1,000,000), (iv) the
parties to each such assignment shall execute and deliver to the Agent an
Assignment and Acceptance and a processing and recordation fee of $3,000 and (v)
the assignee, if it shall not be a Lender, shall deliver to the Agent an
Administrative Questionnaire. Upon acceptance and recording pursuant to
paragraph (e) of this Section 9.04, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
Business Days after the execution thereof, (A) the assignee thereunder shall be
a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this Agreement
and (B) the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto (but shall
continue to be entitled to the benefits of Sections 2.13, 2.15, 2.19 and 9.05,
as well as to any Fees accrued for its account hereunder and not yet paid)).
Notwithstanding the foregoing, any Lender assigning its rights and obligations
under this Agreement may retain any Competitive Loans made by it outstanding at
such time, and in such case shall retain its rights hereunder in respect of any
Loans so retained until such Loans have been repaid in full in accordance with
this Agreement.
(c) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitment, and the outstanding balances of its Standby Loans and
Competitive Loans, in each case without giving effect to assignments thereof
which have not become effective, are as set forth in such Assignment and
Acceptance, (ii) except as set forth in (i) above, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto or the financial condition of
the Borrower or any Subsidiary or the performance or observance by the Borrower
or any Subsidiary of any of its obligations under this Agreement, any other Loan
Document or any other instrument or document furnished pursuant hereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 5.04 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) The Agent shall maintain at one of its offices in The City
of New York a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive in the absence of manifest error and the Borrower,
the Agent and the Lenders may treat each person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee and, if applicable,
the Swingline Lender, an Administrative Questionnaire completed in respect of
the assignee (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) above and, if
required, the written consent of the Borrower and the Agent to such assignment,
the Agent shall (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Lenders.
(f) Each Lender may without the consent of the Borrower, the
Swingline Lender or the Agent sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided, however, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the participating
banks or other entities shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.13, 2.15 and 2.19 to the same extent as if
they were Lenders, provided that the participating banks or other entities shall
not be entitled to receive any more than the selling Lender would have received
had it not sold the participation and (iv) the Borrower, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations of the
Borrower relating to the Loans and to approve any amendment, modification or
waiver of any provision of this Agreement (other than amendments, modifications
or waivers decreasing any fees payable hereunder or the amount of principal of
or the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans or
changing or extending the Commitments).
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 9.04, disclose to the assignee or participant or proposed assignee
or participant any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such proposed
assignee or participant shall execute a confidentiality agreement in the form of
Exhibit F hereto.
(h) Any Lender may at any time assign all or any portion of
its rights under this Agreement issued to it to a Federal Reserve Bank; provided
that no such assignment shall release a Lender from any of its obligations
hereunder. In order to facilitate such an assignment to a Federal Reserve Bank,
the Borrower, shall, at the request of the assigning Lender, duly execute and
deliver to the assigning Lender a promissory note or notes evidencing the Loans
made to the Borrower by the assigning Lender hereunder.
(i) The Borrower shall not assign or delegate any of its
rights or duties hereunder, except as provided in the AAA Agreement.
SECTION 9.05. Expenses; IndemnitySECTION 9.05. Expenses;
Indemnity. (a) The Borrower agrees to pay all reasonable out-of-pocket expenses
incurred by the Agent in connection with the preparation of this Agreement and
the other Loan Documents or in connection with any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
hereby contemplated shall be consummated) or incurred by the Agent or any Lender
in connection with the enforcement or protection of their rights in connection
with this Agreement and the other Loan Documents or in connection with the Loans
made, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Moore, counsel for the Agent, and, in connection with any such
amendment, modification or waiver or any such enforcement or protection, the
fees, charges and disbursements of any other counsel for the Agent or any
Lender. The Borrower further agrees that it shall indemnify the Lenders from and
hold them harmless against any documentary taxes, assessments or charges made by
any Governmental Authority by reason of the execution and delivery of this
Agreement or any of the other Loan Documents.
(b) The Borrower agrees to indemnify the Agent, each Lender
and each of their respective directors, officers, employees and agents (each
such person being called an "Indemnitee") against, and to hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable counsel fees, charges and disbursements, incurred
by or asserted against any Indemnitee arising out of, in any way connected with,
or as a result of (i) the execution or delivery of this Agreement or any other
Loan Document or any agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective obligations thereunder or
the consummation of the Transactions and the other transactions contemplated
thereby, (ii) the use of the proceeds of the Loans or (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (i) are determined by a court
of competent jurisdiction by final and nonappealable judgment to have resulted
from the negligence or wilful misconduct of such Indemnitee and (ii) have not,
in whole or in part, arisen out of or resulted from any act, or omission to act,
of the Borrower or any of its Affiliates.
(c) The provisions of this Section 9.05 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Agent or any Lender. All amounts due under this
Section 9.05 shall be payable on written demand therefor.
SECTION 9.06. Right of SetoffSECTION 9.06. Right of Setoff. If
an Event of Default shall have occurred and be continuing, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter existing
under this Agreement and other Loan Documents held by such Lender, irrespective
of whether or not such Lender shall have made any demand under this Agreement or
such other Loan Document and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable LawSECTION 9.07. Applicable Law.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
--------------------------------------------
SECTION 9.08. Waivers; AmendmentSECTION 9.08. Waivers;
Amendment. (a) No failure or delay of the Agent or any Lender in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agent and the Lenders hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies which
they would otherwise have. No waiver of any provision of this Agreement or any
other Loan Document or consent to any departure by the Borrower therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on the
Borrower in any case shall entitle the Borrower to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders; provided,
however, that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of or any scheduled principal payment date or date for the
payment of any interest on any Loan, or waive or excuse any such payment or any
part thereof, or decrease the rate of interest on any Loan, without the prior
written consent of each Lender affected thereby, (ii) change or extend the
Commitment or decrease the Facility Fees or Utilization Fees of any Lender
without the prior written consent of such Lender, or (iii) amend or modify the
provisions of Section 2.16, the provisions of this Section or the definition of
"Required Lenders", without the prior written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Agent or the Swingline Lender hereunder without the
prior written consent of the Agent or the Swingline Lender, as the case may be.
Each Lender shall be bound by any waiver, amendment or modification authorized
by this Section and any consent by any Lender pursuant to this Section shall
bind any person subsequently acquiring a Loan from it.
SECTION 9.09. Interest Rate LimitationSECTION 9.09. Interest
Rate Limitation. Notwithstanding anything herein to the contrary, if at any time
the applicable interest rate, together with all fees and charges which are
treated as interest under applicable law (collectively the "Charges"), as
provided for herein or in any other document executed in connection herewith, or
otherwise contracted for, charged, received, taken or reserved by any Lender,
shall exceed the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by such Lender in
accordance with applicable law, the rate of interest payable on the Loans made
by such Lender, together with all Charges payable to such Lender, shall be
limited to the Maximum Rate.
SECTION 9.10. Entire AgreementSECTION 9.10. Entire Agreement.
This Agreement and the other Loan Documents constitute the entire contract
between the parties relative to the subject matter hereof. Any previous
agreement among the parties with respect to the subject matter hereof is
superseded by this Agreement and the other Loan Documents. Nothing in this
Agreement or in the other Loan Documents, expressed or implied, is intended to
confer upon any party other than the parties hereto and thereto any rights,
remedies, obligations or liabilities under or by reason of this Agreement or the
other Loan Documents.
SECTION 9.11. Waiver of Jury TrialSECTION 9.11. Waiver of Jury
Trial. Each party hereto hereby waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in respect of any
litigation directly or indirectly arising out of, under or in connection with
this Agreement or any of the other Loan Documents. Each party hereto (a)
certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it and the other parties hereto have been induced to enter into this
Agreement and the other Loan Documents, as applicable, by, among other things,
the mutual waivers and certifications in this Section 9.11.
SECTION 9.12. SeverabilitySECTION 9.12. Severability. In the
event any one or more of the provisions contained in this Agreement or in any
other Loan Document should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 9.13. CounterpartsSECTION 9.13. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute but
one contract, and shall become effective as provided in Section 9.03.
SECTION 9.14. HeadingsSECTION 9.14. Headings. Article and
Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of
ProcessSECTION 9.15. Jurisdiction; Consent to Service of Process. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or the other Loan Documents against any other party or its properties in the
courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this agreement or the other
Loan Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.16. ConfidentialitySECTION 9.16. Confidentiality.
(a) Each Lender agrees to keep confidential and not to disclose (and to cause
its officers, directors, employees, agents, Affiliates and representatives to
keep confidential and not to disclose) all Information (as defined below),
except that such Lender shall be permitted to disclose Information (i) to such
of its officers, directors, employees, advisors, agents, Affiliates and
representatives as need to know such Information in connection with the
servicing and protection of its interests in respect of its Loans and
Commitments, the Loan Documents and the Transactions; (ii) to the extent
required by applicable laws and regulations or by any subpoena or similar legal
process or requested by any Governmental Authority having jurisdiction over such
Lender; (iii) to the extent such Information (A) becomes publicly available
other than as a result of a breach by such Lender of this Agreement, (B) is
generated by such Lender or becomes available to such Lender on a
nonconfidential basis from a source other than the Borrower or its Affiliates or
the Agent, or (C) was available to such Lender on a nonconfidential basis prior
to its disclosure to such Lender by the Borrower or its Affiliates or the Agent;
(iv) as provided in Section 9.04(g); or (v) to the extent the Borrower shall
have consented to such disclosure in writing. As used in this Section 9.16,
"Information" shall mean the Confidential Memorandum and any other confidential
materials, documents and information relating to the Borrower that the Borrower
or any of its Affiliates may have furnished or made available or may hereafter
furnish or make available to the Agent or any Lender in connection with this
Agreement.
(b) Each Transferee shall be deemed, by accepting any
assignment or participation hereunder, to have agreed to be bound by this
Section 9.16.
SECTION 9.17. AAA Agreement AuthorizationSECTION 9.17. AAA
Agreement Authorization. Each of the Lenders hereby authorizes and instructs the
Agent to execute and deliver, on such Lender's behalf, in connection with the
Spin-Off and the Assumption, the AAA Agreement. Each of KCSI, each Lender and
the Agent acknowledges that pursuant to the AAA Agreement, upon execution
thereof by KCSI, Stilwell and the Agent, on behalf of the Lenders, and subject
to the satisfaction (or waiver by the Required Lenders) of the conditions set
forth therein (i) KCSI shall assign and delegate to Stilwell its rights and
obligations hereunder and shall thereafter be released from its obligations
hereunder, (ii) this Agreement shall be amended and restated as provided in the
AAA Agreement and (iii) Stilwell shall assume the obligations assigned and
delegated to it by KCSI and shall become and be the sole obligor under this
Agreement as amended by the AAA Agreement.
IN WITNESS WHEREOF, KCSI, the Agent and the Lenders have
caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
KANSAS CITY SOUTHERN INDUSTRIES, INC.,
by
/s/ Anthony P. McCarthy
---------------------------
Name: Anthony P. McCarthy
Title: Vice President & Treasurer
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent and as Swingline Lender,
by
/s/ Laurie B. Perper
------------------------
Name: Laurie B. Perper
Title: Vice President
BANK OF AMERICA, N.A., individually and as Documentation
Agent,
by
/s/ John G. Hayes
Name: John G. Hayes
Title: Principal
FLEET NATIONAL BANK, individually and as Syndication Agent,
by
/s/ Thomas E. McKinlay
--------------------------
Name: Thomas E. McKinlay
Title: Senior Vice President
BANK HAPOALIM,
by
/s/ Conrad Wagner /s/ Marc Bosc
Name: Conrad Wagner Marc Bosc
Title: First Vice President Vice President
THE BANK OF NEW YORK,
by
/s/ Scott H. Buitekant
--------------------------
Name: Scott H. Buitekant
Title: Vice President
THE BANK OF NOVA SCOTIA,
by
/s/ F. C. H. Ashby
----------------------
Name: F. C. H. Ashby
Title: Senior Manager Loan Operations
DEUTSCHE BANK AG, NEW YORK and/or CAYMAN ISLANDS BRANCHES,
by
/s/ Elizabeth Zieglmeier
Name: Elizabeth Zieglmeier
Title: Director
by
/s/ Clinton M. Johnson
Name: Clinton M. Johnson
Title: Managing Director
THE FUJI BANK, LIMITED,
by
/s/ Peter L. Chinnici
Name: Peter L. Chinnici
Title: Senior Vice President & Group Head
MERCANTILE BANK,
by
/s/ Barry P. Sullivan
Name: Barry P. Sullivan
Title: Vice President
NATIONAL AUSTRALIA BANK LIMITED,
by
/s/ Michael G. McHugh
Name: Michael G. McHugh
Title: Vice President
STATE STREET BANK AND TRUST COMPANY,
by
/s/ Vincent Starck
Name: Vincent Starck
Title: Assistant Vice President
UMB BANK, N.A.,
by
/s/ Terry Dierks
Name: Terry Dierks
Title: Senior Vice President
2
WESTDEUTSCHE LANDESBANK
GIROZENTRALE,
by
/s/ Jay White
Name: Jay White
Title: Vice President
by
/s/ Kenneth R. Crespo
Name: Kennth R. Crespo
Title: Vice President
EXHIBIT A-1
FORM OF COMPETITIVE BID REQUEST
The Chase Manhattan Bank, as Agent
for the Lenders referred to below
Loan and Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, NY 10081
Attention: Chris Consomer
with a copy to:
Chase Securities Inc.
10 South LaSalle Street
Chicago, IL 60603
Attention: Deborah K. Welles
[Date]
Re: 364-Day Credit Agreement Referred to Below
Dear Sirs:
The undersigned, Kansas City Southern Industries, Inc. (the
"Borrower"), refers to the 364-Day Competitive Advance and Revolving Credit
Facility Agreement dated as of January 11, 2000 (as it may hereafter be amended,
modified, extended or restated from time to time, the "Credit Agreement"), among
the Borrower, the Lenders from time to time party thereto, The Chase Manhattan
Bank, as Administrative Agent, Bank of America, N.A., as Documentation Agent,
and Fleet National Bank, as Syndication Agent. Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the Credit Agreement. The Borrower hereby gives you notice pursuant to Section
2.03(a) of the Credit Agreement that it requests a Competitive Borrowing under
the Credit Agreement, and in that connection sets forth below the terms on which
such Competitive Borrowing is requested to be made:
(A) Date of Competitive Borrowing
(which is a Business Day)
(B) Principal amount of
Competitive Borrowing1
(C) Interest rate basis2
(D) Interest Period and the last
day thereof3
Upon acceptance of any or all of the Loans offered by the
Banks in response to this request, the Borrower shall be deemed to have
represented and warranted that the conditions to lending specified in Sectin
4.01(b) and (c) of the Credit Agreement have been satisfied.
Very truly yours,
KANSAS CITY SOUTHERN INDUSTRIES, INC.,
by
Title: [Responsible Officer]
EXHIBIT A-2
FORM OF NOTICE OF COMPETITIVE BID REQUEST
[Name of Bank]
[Address]
Attention:
[Date]
Re: 364-Day Credit Agreement Referred to Below
Dear Sirs:
Reference is made to the 364-Day Competitive Advance and
Revolving Credit Facility Agreement dated as of January 11, 2000 (as it may
hereafter be amended, modified, extended or restated from time to time, the
"Credit Agreement"), among Kansas City Southern Industries, Inc. (the
"Borrower"), the Lenders from time to time party thereto, The Chase Manhattan
Bank, as Administrative Agent, Bank of America, N.A., as Documentation Agent,
and Fleet National Bank, as Syndication Agent. Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the Credit Agreement. The Borrower made a Competitive Bid Request on , 20 ,
pursuant to Section 2.03(a) of the Credit Agreement, and in that connection you
are invited to submit a Competitive Bid by [Date]/[Time].4 Your Competitive Bid
must comply with Section 2.03(b) of the Credit Agreement and the terms set forth
below on which the Competitive Bid Request was made:
(A) Date of Competitive Borrowing
(B) Principal amount of
Competitive Borrowing
(C) Interest rate basis
(D) Interest Period and the last
day thereof
Very truly yours,
THE CHASE MANHATTAN BANK, as Agent,
by
Title:
EXHIBIT A-3
FORM OF COMPETITIVE BID
The Chase Manhattan Bank, as Agent
for the Lenders referred to below
Loan and Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, NY 10081
Attention: Chris Consomer
with a copy to:
Chase Securities Inc.
10 South LaSalle Street
Chicago, IL 60603
Attention: Deborah K. Welles
[Date]
Re: 364-Day Credit Agreement Referred to Below
Dear Sirs:
The undersigned, [Name of Bank], refers to the 364-Day
Competitive Advance and Revolving Credit Facility Agreement dated as of January
11, 2000 (as it may hereafter be amended, modified, extended or restated from
time to time, the "Credit Agreement"), among Kansas City Southern Industries,
Inc. (the "Borrower"), the Lenders from time to time party thereto, The Chase
Manhattan Bank, as Administrative Agent, Bank of America, N.A., as Documentation
Agent, and Fleet National Bank, as Syndication Agent. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement. The undersigned hereby makes a Competitive Bid
pursuant to Section 2.03(b) of the Credit Agreement, in response to the
Competitive Bid Request made by the Borrower on , 19 , and in that connection
sets forth below the terms on which such Competitive Bid is made:
(A) Principal Amount5
(B) Competitive Bid Rate6
(C) Interest Period and last
day thereof
The undersigned hereby confirms that it is prepared, subject
to the conditions set forth in the Credit Agreement, to extend credit to the
Borrower upon acceptance by the Borrower of this bid in accordance with Section
2.03(d) of the Credit Agreement.
Very truly yours,
[NAME OF BANK],
by
Title:
EXHIBIT A-4
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
The Chase Manhattan Bank, as Agent
for the Lenders referred to below
Loan and Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, NY 10081
Attention: Chris Consomer
with a copy to:
Chase Securities Inc.
10 South LaSalle Street
Chicago, IL 60603
Attention: Deborah K. Welles
Re: 364-Day Credit Agreement Referred to Below
Dear Sirs:
The undersigned, Kansas City Southern Industries Inc. (the
"Borrower"), refers to the 364-Day Credit Agreement dated as of January 11, 2000
(as it may hereafter be amended, modified, extended or restated from time to
time, the "Credit Agreement"), among the Borrower, the Lenders from time to time
party thereto, The Chase Manhattan Bank, as Administrative Agent, Bank of
America, N.A., as Documentation Agent, and Fleet National Bank, as Syndication
Agent.
In accordance with Section 2.03(c) of the Credit Agreement, we
have received a summary of bids in connection with our Competitive Bid Request
dated ___________ and in accordance with Section 2.03(d) of the Credit
Agreement, we hereby accept the following bids for maturity on [date]:
Principal Amount Fixed Rate/Margin Lender
$ [%]/[+/-. %]
$
We hereby reject the following bids:
Principal Amount Fixed Rate/Margin Lender
$ [%]/[+/-. %]
$
The $ should be deposited in The Chase Manhattan Bank account number [ ] on
[date].
Very truly yours,
KANSAS CITY SOUTHERN
INDUSTRIES, INC.,
by
Name:
Title:
EXHIBIT A-5
FORM OF STANDBY BORROWING REQUEST
The Chase Manhattan Bank, as Agent
for the Lenders referred to below
Loan and Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, NY 10081
Attention: Margaret Swales
with a copy to:
Chase Securities Inc.
10 South LaSalle Street
Chicago, IL 60603
Attention: Deborah K. Welles
[Date]
Re: 364-Day Credit Agreement Referred to Below
Dear Sirs:
The undersigned, Kansas City Southern Industries, Inc. (the
"Borrower"), refers to the 364-Day Competitive Advance and Revolving Credit
Facility Agreement dated as of January 11, 2000 (as it may hereafter be amended,
modified, extended or restated from time to time, the "Credit Agreement"), among
the Borrower, the Lenders from time to time party thereto and The Chase
Manhattan Bank, as Administrative Agent, Bank of America, N.A., as Documentation
Agent, and Fleet National Bank, as Syndication Agent. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement. The Borrower hereby gives you notice pursuant to
Section 2.04 of the Credit Agreement that it requests a Standby Borrowing under
the Credit Agreement, and in that connection sets forth below the terms on which
such Standby Borrowing is requested to be made:
(A) Date of Standby Borrowing
(which is a Business Day)
(B) Principal Amount of
Standby Borrowing7
(C) Interest rate basis8
(D) Interest Period and the last
day thereof9
3
Upon acceptance of any or all of the Loans made by the Lenders
in response to this request, the Borrower shall be deemed to have represented
and warranted that the conditions to lending specified in Section 4.01(b) and
(c) of the Credit Agreement have been satisfied.
Very truly yours,
KANSAS CITY SOUTHERN INDUSTRIES, INC.,
by
Title: [Responsible Officer]
EXHIBIT B
FORM OF AAA AGREEMENT
ASSIGNMENT, ASSUMPTION AND AMENDMENT
AGREEMENT (this "AAA Agreement") dated as of January
11, 2000, among KANSAS CITY SOUTHERN INDUSTRIES,
INC., a Delaware corporation ("KCSI"), STILWELL
FINANCIAL, INC., a Delaware corporation ("Stilwell"),
and THE CHASE MANHATTAN BANK, a New York banking
corporation, as agent (in such capacity, the "Agent")
for the Lenders (as defined below) and as Swingline
Lender (in such capacity, the "Swingline Lender"),
relating to the Credit Agreement dated as of January
11, 2000 (the "Credit Agreement"), among KCSI, the
lenders from time to time party thereto (the
"Lenders"), The Chase Manhattan Bank, as Agent and as
Swingline Lender, Bank of America, N.A., as
Documentation Agent, and Fleet National Bank, as
Syndication Agent. Capitalized terms used and not
defined herein shall have the meanings assigned to
such terms in the Credit Agreement or in the Amended
Credit Agreement (as defined below), as applicable.
WHEREAS, KCSI, the Lenders, the Swingline Lender and the Agent
are parties to the Credit Agreement;
WHEREAS, KCSI and Stilwell have entered into a Contribution
Agreement dated as of July 7, 1999, which, effective as of July 1, 1999 as
between KCSI and Stilwell, provided for the transfer of certain capital stock,
investments and other assets and rights as provided therein (the "Contribution
Agreement");
WHEREAS, the parties hereto desire to provide that in
accordance with the Contribution Agreement and in order to complete the
Assumption in accordance with the Credit Agreement, KCSI's rights and
obligations under the Credit Agreement, including the Commitments thereunder and
any outstanding Loans, shall be assigned and delegated to, and assumed by,
Stilwell, all in accordance with the Credit Agreement;
WHEREAS, in the event that KCSI and Stilwell consummate the
Assumption, the parties hereto have agreed that this AAA Agreement shall be
executed by KCSI, Stilwell, the Swingline Lender and the Agent, on behalf of the
Lenders, whereupon KCSI shall be released from all obligations under the Credit
Agreement and the Credit Agreement shall be amended and restated as provided
herein (the Credit Agreement, after giving effect to the amendments provided for
in this AAA Agreement, the "Amended Credit Agreement") with Stilwell assuming
KCSI's obligations under the Credit Agreement and becoming the sole obligor
under the Amended Credit Agreement;
WHEREAS, the Lenders, the Swingline Lender and the Agent are
willing, subject to the terms and conditions of this AAA Agreement, to effect
certain amendments to the Credit Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual agreements
contained in this AAA Agreement and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. Assignment, Delegation, Assumption and Release.
Subject to the conditions set forth in Section 4 hereof, (a) KCSI hereby assigns
and delegates to Stilwell all its rights and obligations under (i) the Credit
Agreement, including the Commitments thereunder and any outstanding Loans, and
(ii) the Fee Letter and the commitment letter executed in connection therewith
(such assigned and delegated obligations being collectively referred to herein
as the "Assigned Obligations"), (b) Stilwell hereby assumes and agrees to
perform the Assigned Obligations and (c) KCSI is hereby released from all
obligations under the Credit Agreement, the Fee Letter and the commitment letter
executed in connection therewith.
9
SECTION 2. Amendment. Subject to the conditions set forth in
Section 4 hereof:
----------
(a) The Credit Agreement, including all schedules and exhibits
thereto, is hereby amended, subject to applicable provisions set forth
therein as to the survival of certain rights and obligations, into an
amended and restated credit agreement (the "Amended Credit Agreement")
identical in form and substance to the Credit Agreement except as
expressly modified below. Each reference in the Amended Credit
Agreement and in the exhibits thereto to "the Borrower" or to "Kansas
City Southern Industries, Inc." shall be deemed to be a reference to
Stilwell.
(b) The third paragraph of the preamble of the Amended Credit
Agreement is amended to read in its entirety as follows:
"The proceeds of borrowings hereunder are to
be used for general corporate purposes including,
without limitation, (a) to provide liquidity for a
commercial paper program and (b) to finance
nonhostile acquisitions."
(c) Section 1.01 of the Credit Agreement is hereby amended as
follows:
(i) The following new definitions shall be added to
Section 1.01 of the Credit Agreement in the appropriate
alphabetical order and shall read in their entirety as
follows:
"'Guarantee Agreement' shall mean a
Guarantee Agreement, substantially in the form of
Exhibit A to the AAA Agreement, made by the Borrower
in favor of the Agent for the benefit of the
Lenders."
"'Guarantor' shall mean Stilwell."
"'Subsidiary Borrowers' shall have the
meaning assigned to such term in Section 2.23."
(ii) The following definitions are hereby deleted:
"Consolidated Total Assets",
"Index Debt", and
"STB".
(iii) The following definitions are amended to read
in their entirety as follows:
"'Applicable Percentage' shall mean on any
date, with respect to (a) the Loans comprising any
Eurodollar Standby Borrowing, 0.35% per annum, (b)
the Loans comprising any ABR Borrowing, 0.0% per
annum, and (c) the Facility Fee, 0.15% per annum."
"'Loan Documents' shall mean this Agreement,
the AAA Agreement, the Guarantee Agreement, the Fee
Letter (and the commitment letter executed in
connection therewith) and any assignment document
pursuant to which the Borrower shall assign and
delegate its rights and obligations to a Subsidiary
Borrower in accordance with Section 2.23."
"'Obligations' shall mean all unpaid
principal of and accrued and unpaid interest on the
Loans, all accrued and unpaid Fees and all other
obligations of the Borrower and the Subsidiary
Borrowers to the Lenders or to any Lender or the
Agent arising under the Loan Documents."
"'Significant Subsidiary' shall mean, on any
date of determination, each of (a) Janus, (b) Berger,
(c) Berger LLC, a Subsidiary of Berger, and (d) any
Subsidiary the assets of which represent on such date
more than 10% of the consolidated total assets of the
Borrower and the Consolidated Subsidiaries determined
in accordance with GAAP."
(d) Section 2.22(b) of the Credit Agreement is amended by
deleting the reference therein to "account number 987-087-8577" and
replacing it with a reference to "account number 987-096-4961".
(e) A new Section 2.23 shall be added to the text and the
table of contents of the Credit Agreement and shall read in its
entirety as follows:
"SECTION 2.23. Delegation and Assumption of Loans.
The Borrower may from time to time assign and delegate its
rights and obligations in respect of all or a portion of any
Borrowing and its obligations under the Loan Documents to one
or more of its Subsidiaries that is a domestic Subsidiary
(each such Subsidiary, a "Subsidiary Borrower"); provided that
such Subsidiary Borrower will assume such obligations,
pursuant to an assignment that will result in the Borrower
being relieved of its obligations as a Borrower in respect of
the Borrowing or portion thereof so assigned (but not any
obligations in respect of such Borrowing that arise under
other Loan Documents in the Borrower's capacity as a
Guarantor) and the applicable Subsidiary Borrower succeeding
to all such obligations. The Lenders agree to permit such
assignments, subject to the prior satisfaction of the
following conditions in respect of each such assignment:
(a) each such assignment shall be made
pursuant to documentation reasonably satisfactory in
form and substance to the Agent;
(b) each such assignment shall be subject to
all the terms and conditions hereof that would be
applicable to the relevant type of Borrowing on the
date of such assignment by the Borrower; and
(c) the Guarantee Agreement shall have been
executed and delivered by Stilwell and shall be in
full force and effect; and
(d) the Agent may, in its sole discretion,
require, as an additional condition to any such
assignment, the delivery of such certificates and
legal opinions as to the assignment and the assignee
as it shall reasonably request including evidence of
resolutions duly adopted by the Board of Directors of
the applicable Subsidiary Borrower authorizing the
execution, delivery and performance of the applicable
Loan Documents and the borrowings thereunder, and
that such resolutions have not been modified,
rescinded or amended and are in full force and
effect."
(f) Section 3.02 of the Credit Agreement is amended to read
in its entirety as follows:
"SECTION 3.02. Authorization and Validity. Each of
the Borrower and each Subsidiary Borrower has the corporate
power and authority and legal right to execute and deliver the
Loan Documents to which it is a party and to perform its
obligations thereunder (collectively, the "Transactions"). The
Transactions have been duly authorized by proper corporate
proceedings, and the Loan Documents constitute legal, valid
and binding obligations of the Borrower and the Subsidiary
Borrowers enforceable against the Borrower and the Subsidiary
Borrowers in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency,
moratorium or similar laws affecting the enforcement of
creditors' rights generally."
(g) Section 3.03 of the Credit Agreement is amended by
deleting the parenthetical "(including, without limitation, the
Interstate Commerce Commission Termination Act of 1995 (the "Interstate
Commerce Act") and the regulations promulgated thereunder)" from the
fourth and fifth lines thereof.
(h) Section 3.04(a) of the Credit Agreement is amended by
deleting the parenthetical "(including, without limitation, the
Interstate Commerce Act and the Railway Labor Act)" from the end
thereof.
(i) Section 5.01 of the Credit Agreement is hereby amended to
read in its entirety as follows:
"SECTION 5.01. Conduct of Business; Maintenance of
Ownership of Subsidiaries and Maintenance of Properties. (a)
The Borrower will, and will cause each Significant Subsidiary
to, carry on and conduct its business in substantially the
same manner and in substantially the same fields of enterprise
as it is presently conducted and to do all things necessary to
remain duly incorporated, validly existing and in good
standing as a domestic corporation in its jurisdiction of
incorporation and maintain all requisite authority to conduct
its business in each jurisdiction in which its business is
conducted.
(b) The Borrower will at all times own, directly or
indirectly, not less than 66-2/3% of the outstanding voting
securities of both Janus and Berger, in each case free and
clear of any Liens on such securities.
(c) The Borrower will, and will cause each
Significant Subsidiary to, do all things necessary to
maintain, preserve, protect and keep their properties material
to the conduct of their business in good repair, working order
and condition, and make all necessary and proper repairs,
renewals and replacements so that their businesses carried on
in connection therewith may be properly conducted at all
times.
(d) If the Spin-Off is completed, the Borrower will
cause the Spin-Off to be completed (i) in accordance with
applicable law, (ii) as disclosed in its Form 10 previously
delivered to the Agent and (iii) on terms and with results
consistent with the pro forma financial information previously
delivered to the Agent and the Lenders."
(j) Section 5.03(a) of the Credit Agreement is amended by
deleting the words ", the Interstate Commerce Act" from the
parenthetical contained therein.
(k) Section 5.04(g) of the Credit Agreement is amended by
deleting the words "and filed by any of them with the STB" from the end
thereof.
(l) Section 6.01(a) of the Credit Agreement is amended by (x)
deleting the words "railroad transportation or" from the second line of
clause 6.01(a)(ii); (y) deleting the word "and" at the end of clause
6.01(a)(iv); inserting new clauses 6.01(a)(v) and 6.01(a)(vi) that read
in their entirety as follows:
"(v) Indebtedness of the Subsidiary Borrowers under the Loan
Documents;
(vi) Indebtedness of Subsidiaries under the 1999 Credit
Agreement; and", and (z) renumbering existing clause 6.01(a)(v) as
clause 6.01(a)(vii).
(m) Section 6.03 of the Credit Agreement is amended by
deleting the last sentence thereof.
(n) Section 6.04 of the Credit Agreement is amended to read
as follows:
SECTION 6.04. Mergers, Consolidations and Transfers
of Assets. The Borrower will not, and will not permit any
Subsidiary to, merge into or consolidate with any other
person, or permit any other person to merge into or
consolidate with it, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions)
all or any substantial part of its assets (whether now owned
or hereafter acquired) or any capital stock of any Subsidiary,
except that (a) the Borrower and any Subsidiary may sell
assets in the ordinary course of business and (b) if at the
time thereof and immediately after giving effect thereto no
Event of Default or Default shall have occurred and be
continuing (i) any wholly owned Subsidiary may merge into the
Borrower in a transaction in which the Borrower is the
surviving corporation, (ii) any wholly owned Subsidiary may
merge into or consolidate with any other wholly owned
Subsidiary in a transaction in which the surviving entity is a
wholly owned Subsidiary and no person other than the Borrower
or a wholly owned Subsidiary receives any consideration, (iii)
the Borrower and the Subsidiaries may sell, transfer, lease or
dispose of assets out of the ordinary course of business
having depreciated book values (determined in accordance with
GAAP) that in the aggregate for all assets so disposed of
during the term of this Agreement (other than pursuant to the
following clause (iv)) do not exceed 15% of Consolidated Net
Worth on any date of determination to any other person and
(iv) the Borrower may sell the common stock of DST Systems for
cash to a third party buyer that is not an Affiliate of the
Borrower."
(o) Section 6.07 of the Credit Agreement is amended to read
in its entirety as follows:
"SECTION 6.07. Certain Financial Covenants. The
Borrower will not:
----------------------------
(a) permit at any date the ratio of
Consolidated Total Indebtedness on such date to
Consolidated EBITDA for the period of four quarters
most recently ended as of such date to exceed 2.0 to
1.0;
(b) permit for any period of four
consecutive fiscal quarters the ratio of Consolidated
EBITDA for such period to Consolidated Interest
Expense for such period to be less than 4.0 to 1.0;
or
(c) permit Consolidated Net Worth to be less
than $325,000,000 at any time."
(p) Article VII, clause (m) is amended to read as follows:
"(m) the Borrower shall cease to own beneficially at
least 66-2/3% of the outstanding voting securities of either
Berger or Janus."
(q) Section 9.01(a) of the Credit Agreement is hereby amended
to read as follows:
"(a) if to the Borrower, to it at 114 West 11th
Street, Kansas City, Missouri 64105-1808, Attention of the
Vice President - Finance (Telecopy No. (816) 983-1192), with a
copy to the Vice President and Secretary (Telecopy No. (816)
983-1192);"
(r) Subsection 9.08(b) of the Credit Agreement is hereby
amended by (i) deleting the word "or" at the end of clause 9.08(b)(ii)
and (ii) inserting a new clause 9.08(b)(iv) immediately following
clause 9.08(b)(iii) that reads in its entiretly as follows:
"or (iv) release the Guarantor from its Guarantee
under the Guarantee Agreement, or limit its liability in
respect of such Guarantee, in any case without the prior
written consent of each Lender".
(s) Each reference to "Kansas City Southern Industries, Inc."
in the Exhibits to the Credit Agreement shall be changed to a reference
to "Stilwell Financial, Inc." in the Amended Credit Agreement.
(t) The table of contents of the Credit Agreement is amended
as follows:
(i) Adding the following Section reference:
"Section 2.23 Delegation and Assumption of
Borrowings..."
(ii) Revising the following Section reference:
"Section 5.01 Conduct of Business;
Maintenance of Ownership of Subsidiaries and
Maintenance of Properties..."
(u) Each of Schedule 3.08, 3.09, 3.17, 6.01, 6.02 and 6.04 to
the Credit Agreement is hereby replaced by Schedule 3.08, 3.09, 3.17,
6.01, 6.02 and 6.04 attached hereto.
SECTION 3. Representations and Warranties. Each of KCSI and
Stilwell represents and warrants to each of the Lenders that:
-------------------------------
(a) This AAA Agreement has been duly authorized, and executed
and delivered by it and constitutes its legal, valid and binding
obligation enforceable in accordance with its terms.
(b) The representations and warranties set forth in Article
III of each of the Credit Agreement and the Amended Credit Agreement,
are true and correct in all material respects on the date hereof with
the same effect as if made on the date hereof, except to the extent
such representations and warranties expressly relate to an earlier
date.
(c) Before and after giving effect to this AAA Agreement, no
Default or Event of Default has occurred and is continuing under the
Credit Agreement or the Amended Credit Agreement, as the case may be.
SECTION 4. Conditions to Effectiveness. This AAA Agreement
shall become effective as of the date (the "Effective Date") first above written
upon the satisfaction of the following conditions precedent (capitalized terms
used in this Section 4 shall have the meanings assigned thereto in the Amended
Credit Agreement):
(a) The Agent shall have received counterparts of this AAA
Agreement which, when taken together, bear the signatures of all the
parties hereto.
(b) The Agent shall have received, on behalf of itself and the
Lenders, a favorable written opinion of counsel for the Borrower,
substantially to the effect set forth in Exhibit D of the Credit
Agreement (but referring to this AAA Agreement and the Credit Agreement
as amended hereby and to Stilwell as the Borrower thereunder), (i)
dated the date hereof, (ii) addressed to the Agent and the Lenders, and
(iii) covering such other matters relating to this AAA Agreement, the
Loan Documents and the Transactions as the Agent shall reasonably
request, and each of KCSI and Stilwell hereby instructs such counsel to
deliver such opinion.
(c) All legal matters incident to this AAA Agreement the
borrowings and extensions of credit hereunder and the other Loan
Documents shall be reasonably satisfactory to the Lenders and to
Cravath, Swaine & Moore, counsel for the Agent.
(d) The Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments
thereto, of Stilwell, certified as of a recent date by the Secretary of
State of the State of Delaware, and a certificate as to the good
standing of Stilwell as of a recent date from such Secretary of State;
(ii) a certificate of the Secretary or an Assistant Secretary of
Stilwell dated the date hereof and certifying (A) that attached thereto
is a true and complete copy of the by-laws of Stilwell as in effect on
the date hereof and at all times since a date prior to the date of the
resolutions described in clause (B) below, (B) that attached thereto is
a true and complete copy of resolutions duly adopted by the Board of
Directors of Stilwell authorizing the execution, delivery and
performance of this Agreement and the Loan Documents and the borrowings
hereunder and thereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C)
that the certificate or articles of incorporation of Stilwell have not
been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above,
and (D) as to the incumbency and specimen signature of each officer
executing any Loan Document or any other document delivered in
connection herewith on behalf of Stilwell (iii) a certificate of
another officer as to the incumbency and specimen signature of the
Secretary or Assistant Secretary executing the certificate pursuant to
(ii) above; and (iv) such other documents as the Lenders or Cravath,
Swaine & Moore, counsel for the Agent, may reasonably request.
(e) There shall be no litigation, actual or threatened, that
in the reasonable judgment of the Agent would (a) be likely to affect
materially and adversely the business, assets, condition (financial or
otherwise) or prospects of Stilwell or the ability of Stilwell to
perform its obligations under the Loan Documents or (b) be materially
inconsistent with the assumptions underlying the pro forma financial
information and projections previously delivered to the Agent and the
Lenders pursuant to Section 3.05(b).
(f) After giving effect to the Transfer Transaction and this
AAA Agreement, the representations and warranties set forth in the
Amended Credit Agreement shall be true and correct in all material
respects, no Default or Event of Default shall have occurred and be
continuing under either the Credit Agreement or the Amended Credit
Agreement and Stilwell and its subsidiaries shall be in compliance on a
pro forma basis with Section 6.07 of the Amended Credit Agreement.
(g) The Agent shall have received a certificate, dated the
date of this AAA Agreement and signed by a Financial Officer of KCSI,
with respect to the Credit Agreement, and Stilwell, with respect to the
Amended Credit Agreement, confirming compliance with the conditions
precedent set forth in paragraphs (b) and (c) of Section 4.01 of the
applicable agreement.
(h) The Agent shall have received all Fees and other amounts
due and payable on or prior to the date hereof, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by KCSI or Stilwell hereunder or
under any other Loan Document.
(i) On the date hereof (i) the Guarantee Agreement shall have
been duly executed and delivered to the Agent by the Guarantor and
shall be in full force and effect and (ii) Stilwell shall have executed
and delivered a promissory note in favor of any Lender that previously
had obtained a promissory note from KCSI pursuant to Section 2.07 of
the Credit Agreement and such promissory notes shall be in full force
and effect.
(j) The Transfer Transaction and the Assumption shall have
been completed in accordance with applicable law and on terms and with
results consistent with the pro forma financial information and
projections previously delivered to the Agent and the Lenders.
(k) Immediately after giving effect to the Assumption and the
Spin-Off, (i) Stilwell and its subsidiaries shall have outstanding no
indebtedness or preferred stock other than (v) Loans outstanding under
the Credit Agreement, (w) Loans outstanding under the 1999 Credit
Agreement, (x) other indebtedness in an aggregate amount outstanding at
any time no greater than $10,000,000 (or its equivalent in any other
currency), (y) preferred stock of subsidiaries of Stilwell owned by
Stilwell and (z) other indebtedness and preferred stock reasonably
satisfactory to the Lenders and (ii) Stilwell shall not nor shall any
of its subsidiaries, under the terms of any agreements entered into
with KCSI or any other Person, be responsible for any direct or
contingent liabilities other than (y) those historically associated
with the businesses and assets transferred to Stilwell in the Transfer
Transaction and (z) obligations under the Amended Credit Agreement and
under the 1999 Credit Agreement.
(l) All governmental and third party approvals required in
connection with the Transfer Transaction and this AAA Agreement and the
transactions contemplated hereby and thereby shall have been obtained
on terms reasonably satisfactory to the Agent, all applicable appeal
periods in connection with any such governmental approvals shall have
expired and there shall be no governmental or judicial action, actual
or threatened, that could reasonably be expected to restrain, prevent
or impose burdensome conditions on the Transfer Transaction or this AAA
Agreement or the transactions contemplated hereby or thereby.
(m) The Lenders shall have received a consolidated balance
sheet of Stilwell as of September 30, 1999, giving effect to the
Contribution Agreement as if it had occurred on such date, which shall
not be materially inconsistent with the pro forma financial information
and projections previously delivered to the Agent and the Lenders.
SECTION 5. APPLICABLE LAW. THIS AAA AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
---------------
SECTION 6. Credit Agreement. Until the occurrence of the
Effective Date as provided in Section 4 hereof, the Credit Agreement shall
continue in full force and effect in accordance with the provisions thereof and
the rights and obligations of the parties thereto shall not be affected hereby,
and all Fees and interest accruing under the Credit Agreement shall continue to
accrue at the rates provided for therein.
SECTION 7. Amended Credit Agreement; Borrower. Any reference
in the Amended Credit Agreement, or in any documents or instruments required
thereunder or annexes or schedules thereto, referring to the Credit Agreement,
shall be deemed to refer to the Amended Credit Agreement. As used in the Amended
Credit Agreement, the terms "Agreement", "this Agreement", "herein",
"hereinafter", "hereto", "hereof" and words of similar import shall, unless the
context otherwise requires, mean the Amended Credit Agreement. Except as
expressly modified by this AAA Agreement, the terms and provisions of the Credit
Agreement are hereby confirmed and ratified in all respects and shall remain in
full force and effect as the terms and provisions of the Amended Credit
Agreement. Each reference in the Amended Credit Agreement to "the Borrower"
shall mean Stilwell Financial, Inc. and not Kansas City Southern Industries,
Inc.
SECTION 8. Counterparts. This AAA Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contracts. Delivery of an
executed counterpart of a signature page of this AAA Agreement by facsimile
transmission shall be as effective of a manually executed counterpart of this
AAA Agreement.
SECTION 9. Expenses. The Borrower agrees to reimburse the
Agent for their out-of-pocket expenses in connection with this AAA Agreement
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Moore, counsel for the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this AAA
Agreement to be duly executed by their respective authorized officers as of the
day and year first written above.
KANSAS CITY SOUTHERN INDUSTRIES, INC.
by
Name:
Title:
STILWELL FINANCIAL, INC.,
by
Name:
Title:
THE CHASE MANHATTAN BANK, individually, as Swingline
Lender and as Agent,
by
Name:
Title:
EXHIBIT A
to the Assignment, Assumption
and Amendment Agreement
[Form of]
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT (this "Agreement") dated as of
January 11, 2000, between STILWELL FINANCIAL, INC., a Delaware
corporation (the "Borrower" or the "Guarantor"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, as
administrative agent (the "Agent") for the Lenders (as defined
in the Credit Agreement referred to below).
Reference is made to (a) the Credit Agreement dated as of January 11,
2000 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among KANSAS CITY SOUTHERN INDUSTRIES, INC. ("KCSI"), the
Lenders from time to time party thereto, The Chase Manhattan Bank, as swingline
lender and as administrative agent for the Lenders, Bank of America, N.A., as
Documentation Agent, and Fleet National Bank, as Syndication Agent, and (b) the
Assignment, Assumption and Amendment Agreement dated the date hereof among KCSI,
the Guarantor and the Agent (as amended, supplemented or otherwise modified from
time to time, the "AAA Agreement"). Capitalized terms used herein and not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement, as amended by the AAA Agreement (the "Amended Credit Agreement").
The Lenders have agreed to make Loans to the Borrower pursuant to, and
upon the terms and subject to the conditions specified in, the Amended Credit
Agreement.
Pursuant to Section 2.23 of the Amended Credit Agreement, the Borrower
may from time to time assign and delegate its rights and obligations in respect
of all or a portion of any Borrowing to one or more Subsidiary Borrowers that
will assume such obligations pursuant to an assignment that will result in the
Borrower being relieved of its obligations as a Borrower in respect of the
Borrowing or portion thereof so assigned (but not any obligations in respect of
such Borrowing that arise under other Loan Documents in the Borrower's capacity
as a Guarantor hereunder) and the applicable Subsidiary Borrower succeeding to
all such obligations.
It is a condition precedent to the effectiveness of the AAA Agreement
that the Guarantor shall have executed and delivered this Agreement to the Agent
for the ratable benefit of the Lenders.
In consideration of the premises and to induce the Agent, on behalf of
the Lenders, to enter into this Agreement and permit the assignment and
delegation of Borrowings to Subsidiary Borrowers, as provided in Section 2.23 of
the Amended Credit Agreement, the Guarantor hereby agrees with the Agent, for
the ratable benefit of the Lenders, as follows:
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. The Guarantor unconditionally guarantees, as a
primary obligor and not merely as a surety, (a) the due and punctual payment of
the Obligations and (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Loan Parties under or pursuant to
the Amended Credit Agreement and the other Loan Documents (all the monetary and
other obligations referred to in the preceding clauses (a) and (b) being
collectively called the "Guaranteed Obligations"). The Guarantor further agrees
that the Guaranteed Obligations may be extended, renewed or modified, in whole
or in part, without notice to or further assent from it, and that it will remain
bound upon its guarantee notwithstanding any extension, renewal or modification
of any Guaranteed Obligation.
SECTION 2. Guaranteed Obligations Not Waived. To the fullest extent
permitted by applicable law, the Guarantor waives presentment to, demand of
payment from and protest to any Subsidiary Borrower or the Guarantor of any of
the Guaranteed Obligations, and also waives notice of acceptance of its
guarantee and notice of protest for nonpayment. To the fullest extent permitted
by applicable law, the obligations of the Guarantor hereunder shall not be
affected by (a) the failure of the Agent or any Lender to assert any claim or
demand or to enforce or exercise any right or remedy against any Subsidiary
Borrower or the Guarantor, under the provisions of the Amended Credit Agreement,
any other Loan Document or otherwise or (b) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of this
Agreement, any other Loan Document, any Guarantee or any other agreement.
5
SECTION 3. Guarantee of Payment. The Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Agent or any Lender to
any balance of any deposit account or credit on the books of the Agent or any
Lender in favor of any Subsidiary Borrower or any other person.
SECTION 4. No Discharge or Diminishment of Guarantee. The obligations
of the Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Guaranteed Obligations), including any claim of waiver,
release, surrender, alteration or compromise of any of the Guaranteed
Obligations, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of the Guarantor hereunder
shall not be discharged or impaired or otherwise affected by the failure of the
Agent or any Lender to assert any claim or demand or to enforce any remedy under
the Amended Credit Agreement, any other Loan Document or any other agreement, by
any waiver or modification of any provision of any thereof, by any default,
failure or delay, wilful or otherwise, in the performance of the Guaranteed
Obligations, or by any other act or omission that may or might in any manner or
to any extent vary the risk of the Guarantor or that would otherwise operate as
a discharge of the Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Guaranteed Obligations).
SECTION 5. Defenses of Subsidiary Borrower Waived. To the fullest
extent permitted by applicable law, the Guarantor waives any defense based on or
arising out of any defense of any Subsidiary Borrower or the unenforceability of
the Guaranteed Obligations or any part thereof from any cause, or the cessation
from any cause of the liability of any Subsidiary Borrower, other than the final
and indefeasible payment in full in cash of the Guaranteed Obligations. The
Agent and any Lender may, at their election, compromise or adjust any part of
the Guaranteed Obligations, make any other accommodation with any Subsidiary
Borrower or exercise any other right or remedy available to them against any
Subsidiary Borrower, without affecting or impairing in any way the liability of
the Guarantor hereunder except to the extent the Guaranteed Obligations have
been fully, finally and indefeasibly paid in cash. Pursuant to applicable law,
the Guarantor waives any defense arising out of any such election even though
such election operates, pursuant to applicable law, to impair or to extinguish
any right of reimbursement or subrogation or other right or remedy of the
Guarantor against any Subsidiary Borrower.
SECTION 6. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Agent or any Lender
has at law or in equity against any Guarantor by virtue hereof, upon the failure
of any Subsidiary Borrower to pay any Guaranteed Obligation when and as the same
shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, the Guarantor hereby promises to and will forthwith
pay, or cause to be paid, to the Agent or such Lender as designated thereby in
cash the amount of such unpaid Guaranteed Obligations. Upon payment by the
Guarantor of any sums to the Agent or any Lender as provided above, all rights
of the Guarantor against any Subsidiary Borrower arising as a result thereof by
way of right of subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full in cash of all the Guaranteed Obligations. In
addition, any indebtedness of any Subsidiary Borrower now or hereafter held by
the Guarantor is hereby subordinated in right of payment to the prior payment in
full of the Guaranteed Obligations. If any amount shall erroneously be paid to
the Guarantor on account of (i) such subrogation, contribution, reimbursement,
indemnity or similar right or (ii) any such indebtedness of any Subsidiary
Borrower, such amount shall be held in trust for the benefit of the Lenders and
shall forthwith be paid to the Agent to be credited against the payment of the
Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms of the Loan Documents.
SECTION 7. Information. The Guarantor assumes all responsibility for
being and keeping itself informed of each of the Subsidiary Borrower's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks that the Guarantor assumes and incurs hereunder, and agrees that none of
the Agent or the Lenders will have any duty to advise the Guarantor of
information known to it or any of them regarding such circumstances or risks.
SECTION 8. Representations and Warranties. The Guarantor represents and
warrants that all representations and warranties contained in the Amended Credit
Agreement are true and correct with the same effect as if made on and as of the
date hereof, except to the extent that such representations and warranties
expressly relate to an earlier date.
SECTION 9. Termination. The Guarantees made hereunder (a) shall
terminate when all the Guaranteed Obligations have been indefeasibly paid in
full and the Lenders have no further commitments to lend under the Amended
Credit Agreement and (b) shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part thereof, of any Guaranteed
Obligation is rescinded or must otherwise be restored by any Lender or the
Guarantor upon the bankruptcy or reorganization of any Subsidiary Borrower, the
Guarantor or otherwise.
SECTION 10. Binding Effect; Assignments. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of the Guarantor that are contained in this Agreement
shall bind and inure to the benefit of each party hereto and their respective
successors and assigns. This Agreement shall become effective when a counterpart
hereof executed on behalf of the Guarantor shall have been delivered to the
Agent, and a counterpart hereof shall have been executed on behalf of the Agent,
and thereafter shall be binding upon the Guarantor and the Agent and their
respective successors and assigns, and shall inure to the benefit of the
Guarantor, the Agent and the Lenders, and their respective successors and
assigns, except that the Guarantor shall not have the right to assign its rights
or obligations hereunder or any interest herein (and any such attempted
assignment shall be void).
SECTION 11. Waivers; Amendment. (a) No failure or delay of the Agent in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agent and the Lenders hereunder
and under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by the Guarantor therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on the
Guarantor in any case shall entitle the Guarantor to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Guarantor with respect to which such waiver, amendment or modification
relates and the Agent, with the prior written consent of the Required Lenders
(except as otherwise provided in the Amended Credit Agreement).
SECTION 12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
-------------
SECTION 13. Notices. Except as set forth in the sentence immediately
following, all communications and notices hereunder shall be in writing and
given as provided in Section 9.01 of the Amended Credit Agreement.
SECTION 14. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Guarantor herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Agent and the Lenders and shall survive the making
by the Lenders of the Loans regardless of any investigation made by the Agent,
the Lenders or on their behalf, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any other fee or
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid or the Revolving Credit Exposure does not equal zero and as long as
the Commitments have not been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 15. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract, and shall become effective as
provided in Section 10. Delivery of an executed signature page to this Agreement
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 16. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Amended Credit Agreement shall be applicable to
this Agreement.
SECTION 17. Jurisdiction; Consent to Service of Process. (a) The
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or the other Loan Documents against the Guarantor or its
properties in the courts of any jurisdiction.
(b) The Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 13. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 18. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 18.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
STILWELL FINANCIAL, INC.,
by
---------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as Agent,
by
----------------------------
Name:
Title:
EXHIBIT C
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Competitive Advance and
Revolving Credit Facility Agreement dated as of January 11, 2000 (the "Credit
Agreement"), among Kansas City Southern Industries, Inc., a Delaware corporation
(the "Borrower"), the lenders from time to time party thereto (the "Lenders"),
The Chase Manhattan Bank, as agent for the Lenders (in such capacity, the
"Agent"), Bank of America, N.A., as Documentation Agent, and Fleet National
Bank, as Syndication Agent. Terms defined in the Credit Agreement are used
herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to
the Assignee, and the Assignee hereby purchases and assumes, without recourse,
from the Assignor, effective as of the Effective Date set forth on the reverse
hereof, the interests set forth on the reverse hereof (the "Assigned Interest")
in the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth on the reverse hereof in the
Commitment of the Assignor on the Effective Date and the Competitive Loans and
Standby Loans and Swingline Loans owing to the Assignor which are outstanding on
the Effective Date. Each of the Assignor and the Assignee hereby makes and
agrees to be bound by all the representations, warranties and agreements set
forth in Section 9.04(c) of the Credit Agreement, a copy of which has been
received by each such party. From and after the Effective Date (i) the Assignee
shall be a party to and be bound by the provisions of the Credit Agreement and,
to the extent of the interests assigned by this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and under the Loan Documents
and (ii) the Assignor shall, to the extent of the interests assigned by this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the
Agent together with (i) if the Assignee is organized under the laws of a
jurisdiction outside the United States, the forms specified in Section 2.19(f)
of the Credit Agreement, duly completed and executed by such Assignee, (ii) if
the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire and (iii) a processing and recordation fee of
$3,000.
3. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment (may not be fewer than 5 Business Days after the
Date of Assignment):
2
2
Percentage Assigned of
Facility/Commitment (set forth,
Principal Amount assigned to at least 8 decimals, as a
(and identifying information percentage of the Facility and
as to individual Competitive the aggregate Commitments of all
---
Facility Loans) Lenders thereunder)
- -------------------------- ---------------------------------- -------------------
Commitment Assigned:
$ %
Standby Loans:
Competitive Loans:
Swingline Loans:
The terms set forth above and on the reverse side hereof are hereby agreed to:
Accepted */
-
, as Assignor THE CHASE MANHATTAN BANK, as Agent
- -------------
By: By:
-----------------------
Name: Name:
Title: Title:
, as Assignee KANSAS CITY SOUTHERN INDUSTRIES, INC.,
- -------------
By: By:
-----------------------
Name: Name:
Title: Title:
THE CHASE MANHATTAN BANK, as Swingline Lender,
By:
Name:
Title:
- --------------------
*/ To be completed only if consents are required under Section 9.04(b).
EXHIBIT D
January 11, 2000
To the Lenders. the Administrative Agent
and Swingline Lender referred to below
c/o The Chase Manhattan Bank,
as Administrative Agent
270 Park Avenue
New York, NY 10017
Ladies and Gentlemen:
We have acted as counsel for Kansas City Southern Industries, Inc., a
Delaware corporation (the "Company") in connection with the 364-Day Competitive
Advance and Revolving Credit Facility Agreement (the "Credit Agreement") dated
as of January 11, 2000, among the Company, as borrower, the lenders from time to
time party thereto (the "Lenders"), Bank of America, N.A., as documentation
agent, Fleet National Bank as syndication agent, and The Chase Manhattan Bank,
as administrative agent and swingline lender (the "Agent"). Terms defined in the
Credit Agreement are used herein with the same meanings.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments as we have deemed necessary or advisable
for purposes of this opinion, including:
(i) The Credit Agreement and the notes payable to each Lender
which have been executed and delivered by the Company on the date
hereof (the "Notes");
(ii) The Certificate of Incorporation of the Company as
certified by the Secretary of State of Delaware as of a recent date;
(iii) The By-laws of the Company as in effect on the date
hereof;
(iv) The resolutions duly adopted by written consent to action
by the Board of Directors of the Company on December 2, 1999,
authorizing, among other things, that an officer of the Company execute
and deliver the Credit Agreement and any documents contemplated
thereby;
(v) A certificate issued by the Secretary of State of Delaware
dated December 10, 1999, as to the good standing of the Company in the
State of Delaware and a certificate issued by the Secretary of State of
Missouri as to the qualification and good standing of the Company in
the State of Missouri dated December 13, 1999; and
(vi) The Certificate of Incorporation for each of the
Company's Significant Subsidiaries (listed on Schedule I hereto).
As to questions of fact material to the opinions set forth herein, we
have relied upon the representations of the Company set forth in the Credit
Agreement, certificates of officers and other representatives of the Company and
factual information we have obtained from such other sources as we have deemed
reasonable. We have assumed without investigation that there has been no
relevant change or development between the dates as of which the information
cited in the preceding sentence was given and the date of this letter. We have
not independently verified the accuracy of the matters set forth in the written
statements or certificates upon which we have relied, nor have we undertaken any
lien, suit or judgment searches or searches of court dockets in any
jurisdiction. For purposes of the opinion in paragraph 1, we have relied
exclusively upon certificates issued by relevant governmental authorities in the
relevant jurisdictions, and such opinion is not intended to provide any
conclusion or assurance beyond that conveyed by those certificates.
We have assumed (i) the genuineness and authenticity of all documents
examined by us and all signatures thereon, and the conformity to originals of
all copies of all documents examined by us; (ii) that the execution, delivery
and/or acceptance of the Credit Agreement have been duly authorized by all
action, corporate or otherwise, necessary by the parties to the Credit Agreement
other than the Company (those parties other than the Company are hereinafter
collectively referred to as the "Other Parties" and that the Credit Agreement is
enforceable against each of the Other Parties); (iii) the legal capacity of all
natural persons executing the Credit Agreement; (iv) that each of the Other
Parties has satisfied those legal requirements that are applicable to it to the
extent necessary to make the Credit Agreement enforceable against it; (v) that
each of the Other Parties has complied with all legal requirements pertaining to
its status as such status relates to its rights to enforce the Credit Agreement;
(vi) that the Credit Agreement accurately describes and contains the mutual
understandings of the parties, and that there are no oral or written statements
or agreements or usages of trade or courses of prior dealings among the parties
that would modify, amend or vary any of the terms of the Credit Agreement; (vii)
that the Other Parties will act in accordance with, and will refrain from taking
any action that is forbidden by, the terms and conditions of the Credit
Agreement; (viii) the constitutionality or validity of a relevant statute, rule,
regulation or agency action is not in issue; (ix) all agreements other than the
Credit Agreement which we have reviewed in connection with our letter would be
enforced as written; (x) that there has not been any mutual mistake of fact or
misunderstanding, fraud, duress or undue influence; and (xi) the representations
and warranties in the Credit Agreement are accurate and complete.
We confirm that we do not have any actual knowledge which has caused us
to conclude that our reliance and assumptions cited in the two preceding
paragraphs are unwarranted or that any information supplied in this letter is
wrong.
As used in this opinion with respect to any matter, the qualifying
phrase "to the best of our knowledge" or "our actual knowledge" or such similar
phrase means the conscious awareness of facts or other information by: (i) the
lawyer signing this opinion; and (ii) any lawyer who has had active involvement
in negotiating or preparing the Credit Agreement or that has had a substantial
role in advising the Company or any of its Significant Subsidiaries in
connection with the Spin-Off. In this regard, it is noted that we have not made
any special review or investigation in connection with rendering any opinion so
qualified other than inquiry of various officers, in-house legal counsel and key
employees of the Company and a review of material agreements brought to our
attention.
Based on the foregoing, and in reliance thereon, and subject to the
qualifications, limitations and exceptions stated herein, we are of the opinion,
having due regard for such legal considerations as we deem relevant, that:
1. Each of the Company and its Significant Subsidiaries: (a) is
validly existing and in good standing under the laws of its jurisdiction of
incorporation, (b) has the corporate power and authority to conduct its
businesses as now conducted and (c) is qualified to do business as a foreign
corporation in those jurisdictions, if any, identified on Schedule I attached
hereto.
2. The execution, delivery and performance of the Credit Agreement and
the Notes are within the Company's corporate powers and have been duly
authorized by all necessary corporate action, and the Credit Agreement and the
Notes have been duly executed and delivered by the Company.
3. No approval, authorization, consent, adjudication or order of, or
filing with, any Governmental Authority, which has not been obtained or made, is
required to be obtained or made by the Company or any Significant Subsidiary in
connection with the execution, delivery and performance of the Credit Agreement
or in connection with the borrowings or repayments thereof made in connection
with the Credit Agreement.
4. The execution and delivery of the Credit Agreement and the Notes by
the Company and the performance by the Company of the Obligations have been duly
authorized by all necessary corporate action and proceedings on the part of the
Company and do not:
(a) require any consent of the Company's shareholders;
(b) violate or conflict with any law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on the Company or
any Significant Subsidiary or the Company's or any Significant
Subsidiary's articles of incorporation or bylaws or violate or conflict
with or result in a default under any indenture. material instrument or
material agreement binding upon the Company or any Significant
Subsidiary, and of which we are aware; or
(c) result in, or require the creation or imposition of any
Lien pursuant to the provisions of any indenture, material instrument
or material agreement binding upon the Company or any Significant
Subsidiary and of which we are aware.
5. Each of the Credit Agreement and the Notes constitutes the legal,
valid and binding obligations of the Company enforceable against the Company in
accordance with their respective terms.
6. To the best of our knowledge, and except as disclosed in the Form
10-K of the Company for the fiscal year ended December 31, 1998 filed with the
Securities and Exchange Commission and in Schedule 3.09 of the Credit Agreement,
there is no action, suit, governmental inquiry, investigation or other
proceeding pending or overtly threatened against the Company or any Significant
Subsidiary that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to materially adversely affect the business,
properties, financial condition or results of operations of the Company and its
Significant Subsidiaries taken as a whole or the ability of the Company to
perform its obligations under the Credit Agreement and the Notes.
7. The making of the Loans and the application of the proceeds thereof
by the Company as provided in the Credit Agreement will not result in a
violation of Regulation T, U or Y of the Board of Governors of the Federal
Reserve Board.
8. The Company is not (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
Our opinions as herein expressed are subject to the following
qualifications and limitations:
1. Our opinions are subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other similar laws.
This exception includes:
(a) the Federal Bankruptcy Code and thus comprehends, among
others, matters of turn-over, automatic stay, avoiding powers,
fraudulent transfer, preference, discharge, conversion of a
non-recourse obligation into a recourse claim, limitations on ipso
facto and anti-assignment clauses and the coverage of pre-petition
security agreements applicable to property acquired after a petition is
filed;
(b) all other Federal and state bankruptcy, insolvency,
reorganization, receivership, moratorium, arrangement and assignment
for the benefit of creditors laws that affect the rights of creditors
generally or that have reference to or affect only creditors of
specific types of debtors;
(C) state fraudulent transfer and conveyance laws; and
(d) judicially developed doctrines in this area, such as
substantive consolidation of entities and equitable subordination.
2. Our opinions are subject to the effect of general principles
of equity, whether applied by a court of law or equity. This limitation includes
principles:
(a) governing the availability of specific performance,
injunctive relief or other equitable remedies, which generally place
the award of such remedies, subject to certain guidelines, in the
discretion of the court to which application for such relief is made;
(b) affording equitable defenses (e.g., waiver, latches and
estoppel) against a party seeking enforcement;
(c) requiring good faith and fair dealing in the performance
and enforcement of a contract by the party seeking its enforcement;
(d) requiring reasonableness in the performance and
enforcement of an agreement by the party seeking enforcement of the
contract;
(e) requiring consideration of the materiality of (i) a
breach and (ii) the consequences of the breach to the party seeking
enforcement;
(f) requiring consideration of the impracticability or
impossibility of performance at the time of attempted enforcement; and
(g) affording defenses based upon the unconscionability of the
enforcing party's conduct after the parties have entered into the
contract.
3. Our opinions are subject to the effect of the rules of law that:
(a) limit or affect the enforcement of provisions of a
contract that purport to waive, or to require waiver of, (i) the
obligations of good faith, fair dealing, diligence and reasonableness,
(ii) broadly or vaguely stated rights, (iii) statutory, regulatory or
constitutional rights, except to the extent that the statute,
regulation or constitution explicitly allows waivers; (iv) unknown
future defenses; and (v) rights to damages;
(b) provide that choice of law, forum selection, consent to
jurisdiction, consent to and specification of service of process and
jury waiver clauses in contracts are not necessarily binding;
(c) limit the enforceability of provisions releasing,
exculpating or exempting a party from, or requiring indemnification of
a party for, liability for its own action or inaction;
(d) may, where less than all of a contract may be
unenforceable, limit the enforceability of the balance of the contract
to circumstances in which the unenforceable portion is not an essential
part of the agreed exchange;
(e) govern and afford judicial discretion regarding the
determination of damages and entitlement to attorneys' fees and other
costs;
(f) may permit a party that has materially failed to render or
offer performance required by the contract to cure that failure unless
(i) permitting a cure would unreasonably hinder the aggrieved party
from making substitute arrangements for performance, or (ii) it was
important in the circumstances to the aggrieved party that performance
occur by the date stated in the contract; and
(g) limit the enforceability of any provision purporting: (i)
to cause an indemnification, guaranty or undertaking to survive
repayment of the Loans or the satisfaction, disclosure, settlement,
discharge or other termination of the Credit Agreement; (ii) to require
the payment of interest (or discount or equivalent amounts) or any
premium or "make whole" payment at a rate or in an amount, after the
maturity or after or upon acceleration of the respective liabilities
evidenced or secured thereby, or after or during the continuance of any
default, event of default or other circumstance, or upon repayment,
which a court may determine to be unreasonable, a penalty or a
forfeiture or (iii) to create or waive a trust, agency,
attorney-in-fact or other fiduciary relationship.
4. We express no opinion as to the laws of any jurisdiction other than
the laws of the States of Missouri and New York (excluding, in each case, local
laws), Delaware corporate laws and the federal laws of the United States of
America.
5. Except to the extent that such issues are specifically addressed
herein, we express no opinion as to any of the following legal issues:
(a) pension and employee benefit laws and regulations (e.g.
ERISA);
(b) compliance with fiduciary duty requirements;
(c) fraudulent transfer and fraudulent conveyance laws:
(d) Federal and state tax laws and regulations;
(e) Federal and state laws, regulations and policies
concerning (i) national and local emergency, (ii) possible judicial
deference to acts of sovereign states, and (iii) criminal civil
forfeiture laws;
(f) Federal and state securities laws and regulations; and
(g) other Federal and state statutes of general application
to the extent they provide for criminal prosecution (e.g., mail fraud
and wire fraud statutes).
6. We call your attention to the fact that the enforceability of any
provision purporting to require any party to execute promissory notes in the
future is subject to general principles of equity and the discretion of a court
of equity as to whether such a provision should be enforced.
This opinion is rendered on the date hereof and we have no continuing
obligation hereunder to inform you of changes of law or fact subsequent to the
date hereof or facts of which we have become aware after the date hereof. This
opinion covers matters as of the date hereof and does not address events which
may take place after the date hereof but are contemplated by the Credit
Agreement or amendments to the Credit Agreement after the date hereof.
This opinion is limited to the matters set forth herein; no opinion may
be inferred or implied beyond the matters expressly stated in this letter.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other Person (other than your successors and assigns as
Lenders and Persons that acquire participations in your Loans) without our prior
written consent.
i ` :~" _: % _21
SCHEDULE I
Caymex Transportation, Inc. SCC Holdings, Inc.
Delaware (domestic) Delaware (domestic)
Gateway Eastern Railway Company Southern Development Company,
Illinois (domestic) Missouri (domestic)
Gateway Western Railway Company Southern Industrial Services, Inc.
Illinois (domestic) Delaware (domestic)
Kansas Kansas
Missouri Missouri
Global Terminaling Services, Inc. The Kansas City Southern Railway
Delaware (domestic) Company
Missouri Alabama
Texas Arkansas
Kansas
Kansas City Southern Industries, Inc. Louisiana
Missouri (domestic) Missouri (domestic)
Oklahoma
Kansas City Southern Lines, Inc. Tennessee
Delaware (domestic)
Missouri Trans-Serve, Inc.
Arkansas
KCS Transportation Company Delaware (domestic)
Delaware (domestic) Louisiana
Missouri
Veals, Inc.
Mid-South Microwave, Inc. Arkansas
Arkansas Delaware (domestic)
Delaware (domestic) Kansas
Kansas Louisiana
Louisiana Missouri
Missouri Oklahoma
Oklahoma
Texas
Rice-Carden Corporation
Arkansas
Louisiana
Missouri (domestic)
Oklahoma
Texas
SCHEDULE I
Berger, LLC
Colorado (domestic)
Nevada
Janus Capital Corporation
Colorado (domestic)
Janus Capital International Ltd.
Colorado (domestic)
Connecticut
Janus Distributors, Inc.
Colorado (domestic)
Janus Service Corporation
Colorado (domestic)
Texas
Stilwell Financial, Inc.
Colorado (domestic)
Missouri
Stilwell Management, Inc.
Colorado (domestic)
10
EXHIBIT E
[FORM OF]
COMPLIANCE CERTIFICATE
To: The Lenders party to the
Credit Agreement described below
care of
The Chase Manhattan Bank, as Agent
for the Lenders referred to below
Loan and Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, NY 10081
Attention: Margaret Swales
with a copy to:
Chase Securities Inc.
10 South LaSalle Street
Chicago, IL 60603
Attention: John Hinard
This Compliance Certificate is furnished pursuant to the
364-Day Credit Agreement dated as of January 11, 2000 (the "Agreement"), among
Kansas City Southern Industries, Inc. (the "Borrower"), the Lenders from time to
time party thereto, The Chase Manhattan Bank, as Agent, Bank of America, N.A.,
as Documentation Agent, and Fleet National Bank, as Syndication Agent. Unless
otherwise defined herein, the terms used in this Compliance Certificate have the
meanings assigned to them in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected chief financial officer of the
Borrower;
2. I have reviewed the terms of the Agreement and I have made,
or have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and the Subsidiaries during the
accounting period covered by the attached financial statements;
3. The form attached hereto sets forth financial data and
computations evidencing the Borrower's and the Subsidiaries' compliance with
certain covenants of the Agreement, all of which data and computations are true,
complete and correct; and
4. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or event which
constitutes a Default or an Event of Default during or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Compliance Certificate, except as set forth below:
[Describe the exceptions by listing, in detail, the nature of
the condition or event, the period during which it has existed
and the action which the Borrower has taken, is taking, or
proposes to take with respect to each such condition or event]
The foregoing certifications, together with the computations
required by the Credit Agreement attached hereto and the financial statements
delivered with this Compliance Certificate in support hereof, are made and
delivered this day of , 20.
Name:
Title:
EXHIBIT F
[Letterhead of Prospective Assignee or Participant]
[FORM OF]
CONFIDENTIALITY AGREEMENT
[Date]
The Chase Manhattan Bank, as Agent
for the Lenders referred to below
Loan and Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, NY 10081
Attention: Margaret Swales
with a copy to:
Chase Securities Inc.
10 South LaSalle Street
Chicago, IL 60603
Attention: Deborah K. Welles
Kansas City Southern Industries, Inc.
Confidentiality Agreement
Dear Sirs:
In connection with our possible acquisition of an interest in
the credit facility (the "Facility") established by the 364-Day Credit Agreement
dated as of January 11, 2000, among the Borrower as defined therein, the lenders
from time to time party thereto (the "Lenders"), The Chase Manhattan Bank, as
Agent, Bank of America, N.A., as Documentation Agent, and Fleet National Bank,
as Syndication Agent, you, the Borrower or any Lender may furnish us with
confidential documents, materials and information (the "Information") relating
to the Borrower.
We agree to keep confidential and not to disclose (and to
cause our officers, directors, employees, agents, Affiliates and representatives
to keep confidential and not to disclose) and, at the request of you or the
Borrower, promptly to return or destroy, the Information and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that we
shall be permitted to disclose Information (i) to such of our officers,
directors, employees, agents, Affiliates and representatives as need to know
such Information in connection with such acquisition; (ii) to the extent
required by applicable laws and regulations or by any subpoena or similar legal
process, or requested by any governmental agency or authority having
jurisdiction over us; (iii) to the extent such Information (A) becomes publicly
available other than as a result of a breach by us of this letter, (B) is
generated by us or becomes available to us on a nonconfidential basis from a
source other than you, the Borrower or any Lender or (C) was available to us on
a nonconfidential basis prior to its disclosure to us by you, the Borrower or
any Lender; or (iv) to the extent the Borrower shall have consented in writing
to such disclosure.
Notwithstanding anything to the contrary contained above, we
shall be entitled to retain all Information to use for the administration of our
interests and the protection of our rights under the Facility.
The Borrower shall be a third party beneficiary of this
Agreement.
Very truly yours,
[Name of potential
participant/assignee]
by
Name:
Title:
Exhibit G
[Chase Manhattan Bank Letterhead]
ADMINISTRATIVE QUESTIONNAIRE
Please accurately complete the following information and return via FAX to the
attention of Daniel Krauss The Chase Manhattan Bank as soon as possible.
FAX Number: 212-552-5662
LEGAL NAME OF YOUR INSTITUTION TO APPEAR IN DOCUMENTATION:
- ----------------------------------------------------------
GENERAL INFORMATION - DOMESTIC LENDING OFFICE:
Institution Name:
----------------------------------------------------
----------------------------------------------------
Street Address:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
City, State, Zip Code:
- -------------------------- ----------------------------------------------------
GENERAL INFORMATION - EURODOLLAR LENDING OFFICE:
Institution Name:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
Street Address:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
City, State, Zip Code:
- -------------------------- ----------------------------------------------------
CONTACTS/NOTIFICATION METHOD:
- -----------------------------
CREDIT CONTACTS:
Primary Contact
- -------------------------- ----------------------------------------------------
----------------------------------------------------
Street Address:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
City, State, Zip Code:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
Phone Number:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
FAX Number:
- -------------------------- ----------------------------------------------------
Backup Contact
- -------------------------- ----------------------------------------------------
----------------------------------------------------
Street Address:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
City, State, Zip Code:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
Phone Number:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
FAX Number:
- -------------------------- ----------------------------------------------------
TAX WITHHOLDING:
Non Resident Alien Y* N
---------- -----------
* Form 4224 Enclosed
Tax ID Number
--------------------------------
CONTACTS/NOTIFICATION METHOD:
ADMINISTRATIVE CONTACTS - BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact
- -------------------------- ----------------------------------------------------
----------------------------------------------------
Street Address:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
City, State, Zip Code:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
Phone Number:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
Fax Number:
- -------------------------- ----------------------------------------------------
BID LOAN NOTIFICATION:
Contact
- -------------------------- ----------------------------------------------------
----------------------------------------------------
Street Address:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
City, State, Zip Code:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
Phone Number:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
Fax Number:
- -------------------------- ----------------------------------------------------
PAYMENT INSTRUCTIONS:
Name of Bank where funds are to be transferred:
- -------------------------------------------------------------------------------
Routing Transit/ABA number of Bank where funds are to be transferred:
- -------------------------------------------------------------------------------
Name of Account: (If applicable)
- -------------------------------------------------------------------------------
Account Number:
- -------------------------------------------------------------------------------
Additional Information:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
MAILINGS:
Please specify who should receive financial information:
Name:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
Street Address:
- -------------------------- ----------------------------------------------------
----------------------------------------------------
City, State, Zip Code:
- -------------------------- ----------------------------------------------------
It is very important that all of the above information is accurately filed in
and returned promptly. If you have any questions, please call a representative
at Loan & Agency Services on 212-552-7909.
SCHEDULE 2.01
Commitments
Name of Lender Commitment
The Chase Manhattan Bank $20,000,000
Bank of America, N.A. $18,000,000
Fleet National Bank $18,000,000
The Bank of New York $15,000,000
The Bank of Nova Scotia $15,000,000
Deutsche Bank AG, New York and/or Cayman Island Branches $15,000,000
The Fuji Bank, Ltd. $15,000,000
Mercantile Bank $15,000,000
National Australia Bank $15,000,000
State Street Bank and Trust Company $15,000,000
Westdeutsche Landesbank Girozentrale $15,000,000
Bank Hapoalim B.M. $12,000,000
UMB Bank, N.A. $12,000,000
-----------
Total Commitment $200,000,000
14072105 v4
KANSAS CITY SOUTHERN INDUSTRIES, INC.
SCHEDULE 3.08 TO
364-DAY COMPETITIVE ADVANCE
AND REVOLVING CREDIT AGREEMENT
SUBSIDIARIES AND JOINT VENTURES
Transportation Subsidiaries Percentage of State or other Jurisdiction of
---------------------------
Ownership Incorporation or Organization
Canama Transportation, Inc. (1) 100 Cayman Islands
Caymex Transportation, Inc. (2) 100 Cayman Islands
(Domesticated in Delaware)
Gateway Eastern Railway Company (3) 100 Illinois
Gateway Western Railway Company (4) 100 Illinois
Global Terminaling Services, Inc. (5) 100 Delaware
Kansas City Southern Lines, Inc. (6) 100 Delaware
KCS Transportation Company (2) 100 Delaware
Mid-South Microwave, Inc. (2) 100 Delaware
NAFTA Rail, S.A. de C.V. (1) 100 Mexico
SCC Holdings, Inc. (2) 100 Delaware
Southern Capital Corporation, LLC (16) 50 Colorado
North American Freight Transportation Alliance Rail 100 Delaware
Corporation (7)
Panama Canal Railway Company (17) 50 Cayman Islands
Port Arthur Bulk Marine Terminal Co. (8) 80 Partnership
Rice-Carden Corporation (2) 100 Missouri
Southern Development Company (2) 100 Missouri
Southern Industrial Services, Inc. (7) 100 Delaware
The Kansas City Southern Railway Company (7) 100 Missouri
TransFin Insurance, Ltd. (7) 100 Vermont
Trans-Serve, Inc. (5) 100 Delaware
Veals, Inc. (7) 100 Delaware
Wyandotte Garage Corporation (7) 80 Missouri
Financial Asset Percentage of State or Other Jurisdiction of
Management Subsidiaries Ownership Incorporation or Organization
Berger LLC (9) 80 Delaware
Berger Distributors, Inc. (10) 100 Delaware
DST Systems, Inc. (9) 32 Delaware
Stilwell Financial, Inc. (6) 100 Delaware
FAM UK Limited (11) 100 United Kingdom
Stilwell Management, Inc. (11) 100 Delaware
Fillmore Agency, Inc. (11) 100 Colorado
Fountain Investments, Inc. (11) 100 Missouri
Fountain Investments UK (11) 100 United Kingdom
Janus Capital Corporation (11) 82 Colorado
Janus Capital International Ltd. (12) 100 Colorado
Janus Distributors, Inc. (12) 100 Colorado
Janus Service Corp. (12) 100 Colorado
Joseph Nelson Limited (13) 100 United Kingdom
Nelson Investment Planning Limited (13) 100 United Kingdom
Nelson Investment Management Limited (13) 100 United Kingdom
Nelson Money Managers plc (15) 80 United Kingdom
PVI, Inc. (11) 100 Delaware
Taproot Limited (13) 100 United Kingdom
Notes to Schedule 3.08:
(1) Subsidiary of Caymex Transportation, Inc.
(2) Subsidiary of The Kansas City Southern Railway Company
(3) Subsidiary of Gateway Western Railway Company
(4) Subsidiary of KCS Transportation Company
(5) Subsidiary of Southern Industrial Services, Inc.
(6) Subsidiary of Kansas City Southern Industries, Inc.
(7) Subsidiary of Kansas City Southern Lines, Inc.
(8) Subsidiary of Rice-Carden Corporation
(9) Subsidiary of Stilwell Management, Inc.
(10) Subsidiary of Berger LLC
(11) Subsidiary of Stilwell Financial, Inc.
(12) Subsidiary of Janus Capital Corporation
(13) Subsidiary of Nelson Money Managers plc
(14) Subsidiary of Joseph Nelson Limited
(15) Subsidiary of FAM UK Limited
(16) Subsidiary of SCC Holdings, Inc.
(17) Subsidiary of Canama Transportation, Inc.
- - 2 -
14070118\V-1
14072105 v4
KANSAS CITY SOUTHERN INDUSTRIES, INC.
SCHEDULE 3.09 TO
364-DAY COMPETITIVE ADVANCE
AND REVOLVING CREDIT AGREEMENT
LITIGATION
Duncan Case
In 1998, a jury in Beauregard Parish, Louisiana returned a verdict
against the Borrower in the amount of $16.3 million. The Louisiana state case
arose from a railroad crossing accident which occurred at Oretta, Louisiana on
September 11, 1994, in which three individuals were injured. Of the three, one
was injured fatally, one was rendered quadriplegic and the third suffered less
serious injures.
Subsequent to the verdict, the trial court held that the plaintiffs
were entitled to interest on the judgment from the date the suit was filed,
dismissed the verdict against one defendant and reallocated the judgment of that
verdict to the remaining defendants. The resulting total judgment against the
Borrower, together with interest, was approximately $26.7 million at September
30, 1999.
On November 3, 1999 the Third Circuit Court of Appeals in Louisiana
affirmed the judgment. Review will now be sought in the Louisiana Supreme Court.
Bogalusa Cases
In July 1996, the Borrower was named as one of 27 defendants in various
lawsuits in Louisiana and Mississippi arising from the explosion of a rail car
loaded with chemicals in Bogalusa, Louisiana on October 23, 1995. As a result of
the explosion, nitrogen dioxide and oxides of nitrogen were released into the
atmosphere over parts of that town and the surrounding area allegedly causing
evacuations and injuries. Approximately 25,000 residents of Louisiana and
Mississippi have asserted claims to recover damages allegedly caused by exposure
to the chemicals.
The Borrower neither owned nor leased the rail car or the rails on
which the rail car was located at the time of the explosion in Bogalusa. The
Borrower did, however, move the rail car from Jackson to Vicksburg, Mississippi,
where it was loaded with chemicals, and back to Jackson where the car was
tendered to the Illinois Central Railway Company ("IC"). The explosion occurred
more than 15 days after the Borrower last transported the rail car. The car was
loaded by the shipper in excess of its standard weight, but under the car's
capacity, when it was transported by the Borrower to interchange with the IC.
The trial of a group of 20 plaintiffs in the Mississippi lawsuits
arising from the chemical release resulted in a jury verdict and judgment in
favor of the Borrower in June 1999. The jury found that the Borrower was not
negligent and that the plaintiffs had failed to prove that they were damaged.
The trial of the Louisiana class action and the trial of another group of
Mississippi plaintiffs could both begin during the year 2000.
KANSAS CITY SOUTHERN INDUSTRIES, INC.
SCHEDULE 3.17 TO
364-DAY COMPETITIVE ADVANCE
AND REVOLVING CREDIT AGREEMENT
DIVIDEND RESTRICTIONS
The Wyandotte Garage Corporation has entered into a mortgage which
restricts its ability to pledge its assets, give guarantees and make
distributions.
KANSAS CITY SOUTHERN INDUSTRIES, INC.
SCHEDULE 6.01 TO
364-DAY COMPETITIVE ADVANCE
AND REVOLVING CREDIT AGREEMENT
INDEBTEDNESS
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Obligor Payee Description Maturity Balance
------- ----- ----------- --------
@9/30/99
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
The Kansas City
Southern Railway Chemical Bank Locomotive Purchase 8/04 $4,620,550
Company
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
The Kansas City Chemical Bank Locomotive Purchase 1/03 7,807,834
Southern Railway Company
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
The Kansas City The Chase Manhattan Locomotive Purchase 12/06 43,265,552
Southern Railway Company Bank
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
The Kansas City Bank of New York Locomotive Purchase 5/03 14,405,798
Southern Railway Company
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
The Kansas City Connecticut Bank and Capital Lease/ 6/04 1,156,314
Southern Railway Company Trust Rolling Stock
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
The Kansas City Trinity Industries Capital Lease/ 2/06 614,048
Southern Railway Company Rolling Stock
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
The Kansas City Pitney Bowes Capital Lease/ 9/09 2,339,322
Southern Railway Company Rolling Stock
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Gateway Western Railway State of Illinois Jacksonville 1/06 556,063
Company Rehabilitation Project
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Gateway Western Railway State of Illinois East St. Louis 4/07 242,220
Company Rehabilitation Project
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Gateway Western Railway State of Illinois Roadhouse to 1/07 2,378,894
Company East Louisiana
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Venice Intermodel
Gateway Western Railway State of Illinois Facility 12/09 1,844,644
Company Rehabilitation
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Gateway Eastern Railway State of Illinois Rehabilitation 2/18 914,645
Company Project Wann-Lenox
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Wyandotte Garage Lincoln National Mortgage on Property 12/12 5,653,829
Corporation
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Southern Industrial
Services, Inc./ IRB IRB 5/04 5,000,000
TranServe, Inc.
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Contingent Capital
Kansas City Southern TFM contribution N/A 74,600,000
Industries, Inc. obligation
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Contingent Capital 7,500,000
Kansas City Southern Panama Canal Railway contribution N/A (+5% of Project
Industries, Inc. Company obligation Completion Costs)
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- - 2 -
KANSAS CITY SOUTHERN INDUSTRIES, INC.
SCHEDULE 6.02 TO
364-DAY COMPETITIVE ADVANCE
AND REVOLVING CREDIT AGREEMENT
LIENS
- ------------------------------------- --------------------------------- ------------------------- --------------------
Debtor Secured Party Collateral Debt Secured
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
The Kansas City Southern Railway Chemical Bank Specific Locomotives $4,620,550
Company
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
The Kansas City Southern Railway Chemical Bank Specific Locomotives 7,807,834
Company
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
The Kansas City Southern Railway Bank of New York Specific Locomotives 14,405,798
Company
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
The Kansas City Southern Railway The Chase Specific Locomotives 43,265,552
Company Manhattan Bank
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
The Kansas City Southern Railway Connecticut Capital Lease/ 1,156,314
Company Bank and Trust Rolling Stock
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
The Kansas City Southern Railway Trinity Capital Lease/ 614,048
Company Rolling Stock
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
The Kansas City Southern Railway Pitney Bowes Capital Lease/ 2,339,322
Company Rolling Stock
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
Gateway Western Railway Company State of Illinois Rehabilitation Project 556,063
Assets
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
Gateway Western Railway Company State of Illinois Rehabilitation Project 242,220
Assets
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
Gateway Western Railway Company State of Illinois Rehabilitation Project 2,378,894
Assets
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
Gateway Western Railway Company State of Illinois Rehabilitation Project 1,844,644
Assets
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
Gateway Eastern Railway Company State of Illinois Rehabilitation Project 914,645
Assets
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
Wyandotte Garage Corporation Lincoln National Real 5,653,829
Property
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
Southern Industrial Services, IRB Plant 5,000,000
Inc./TranServe
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
Gateway Western State of Missouri [Fixed Assets] Flood
Railway Company Relief Grant
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
The Kansas City Southern Railway GE Capital Fleet Services Specific Equipment Operating
Company Under Operating Leases Leases
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
The Kansas City Southern Railway Puckett Machine Company Specific Equipment Operating
Company Under Operating Leases Leases
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
The Kansas City Southern Railway IBM Credit Specific Equipment Operating
Company Under Operating Leases Leases
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
The Kansas City Southern Railway Storage Tek Financial Specific Equipment Operating
Company Under Operating Leases Leases
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
The Kansas City Southern Railway General Electric Specific Equipment Operating
Company Capital Corporation Under Operating Leases Leases
- ------------------------------------- --------------------------------- ------------------------- --------------------
- ------------------------------------- --------------------------------- ------------------------- --------------------
The Kansas City Southern Railway GE Capital Modular Trailer Operating
Company Leases
- ------------------------------------- --------------------------------- ------------------------- --------------------
1/ Not less than $5,000,000 (and in integral multiples $1,000,000) or
greater than the Total Commitment then available.
2/ Eurodollar Loan or Fixed Rate Loan.
-
3/ Which shall be subject to the definition of "Interest Period" and end
not later than the Maturity Date. 4/ The Competitive Bid must be received
by the Agent (i) in the case of Eurodollar Loans, not later than
9:30 a.m., New York City time, three Business Days before a proposed Competitive
Borrowing, and (ii) in the case of Fixed Rate Loans, not later than 9:30 a.m.,
New York City time, on the Business Day of a proposed Competitive Borrowing.
5/ Not less than $5,000,000 or greater than the requested Competitive
Borrowing and in integral multiples of $1,000,000. Multiple bids will be
accepted by the Agent.
6/ LIBO Rate + or - %, in the case of Eurodollar Loans or %, in the case of Fixed Rate Loans.
-
7/ Not less than $5,000,000 (and in integral multiples of $1,000,000) or greater than the Total
-
Commitment then available.
8/ Eurodollar Loan or ABR Loan.
-
9/ Which shall be subject to the definition of "Interest Period" and end
not later than the Maturity Date.