AMENDED AND RESTATED FIVE-YEAR COMPETITIVE
ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT is
made as of the 2nd day of May 1997 (the "Amendment and
Restatement"), among KANSAS CITY SOUTHERN INDUSTRIES,
INC., a Delaware corporation (the "Borrower"), each
lender listed on the signature pages hereof (each
individually a "Lender" and collectively the
"Lenders") and [INFORMATION SUBJECT TO REQUEST FOR
CONFIDENTIAL TREATMENT] as administrative agent for
the Lenders (in its capacity as administrative agent,
the "Agent").
WHEREAS, on May 5, 1995, the Borrower, [INFORMATION SUBJECT
TO REQUEST FOR CONFIDENTIAL TREATMENT], as agent, and certain of the
Lenders entered into a Five-Year Credit Agreement (as previously
amended, the "Credit Agreement") pursuant to which the Lenders made
available to the Borrower Loans in an aggregate principal amount not to
exceed $300,000,000 at any time outstanding;
WHEREAS, on May 3, 1996, the Borrower, [INFORMATION SUBJECT
TO REQUEST FOR CONFIDENTIAL TREATMENT], as agent, and the Lenders
entered into the First Amendment to the Credit Agreement pursuant to
which the Maturity Date was extended and certain other amendments to the
Credit Agreement were effectuated;
WHEREAS, the parties hereto desire to amend and restate the
Credit Agreement as set forth herein and to restate the Credit Agreement
in its entirety to read as set forth in the Credit Agreement after
giving effect to the amendments set forth herein; and
WHEREAS, the Borrower and the Lenders have agreed to amend
and restate, on the terms and subject to the conditions set forth
herein, the Credit Agreement, to provide for the foregoing.
NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants herein set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Agent and the Lenders hereby agree as
follows:
SECTION 1. All capitalized terms which are defined in the
Credit Agreement and not otherwise defined herein or in the recitals
hereof shall have the same meaning herein as in the Credit Agreement.
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SECTION 2. All references to Section numbers in this
Amendment shall, except as the context requires, be references to the
corresponding Sections of the Credit Agreement.
SECTION 3. On and after the Restatement Effective Date (as
defined below), each reference in the Credit Agreement to "this
Agreement", "hereunder", "herein", or words of like import shall mean
and be a reference to the Credit Agreement, as amended and restated
hereby.
SECTION 4. Article 1 of the Credit Agreement is hereby
amended by:
(a) Adding in the appropriate alphabetical order the
definitions of "Amendment and Restatement" and "Restatement
Effective Date" which shall read in their entirety as follows:
"'Amendment and Restatement' shall mean the Amended and
Restated Five-Year Credit Agreement dated as of May 2, 1997 among
the Borrower, the Lenders and the Agent."
"'Restatement Effective Date' shall mean May 2, 1997;
provided, that each of the conditions precedent to the Amendment
and Restatement shall have been satisfied in full."
(b) Deleting the definition of Maturity Date in its
entirety and substituting in lieu thereof the following:
"'Maturity Date' shall mean May 2, 2002."
SECTION 5. Schedule 2.01 to the Credit Agreement shall be
deleted in its entirety, and Exhibit A, attached hereto, shall be
substituted in lieu thereof as Schedule 2.01 to the Credit Agreement, to
the effect that the aggregate Commitments of the Lenders under the
Credit Agreement, as amended hereby, shall remain equal to $300,000,000,
and the Commitment of each Lender after the effectiveness of this
Amendment and Restatement shall be the amount set forth beside such
Lender's name on such Schedule 2.01 to the Credit Agreement, as amended
hereby, as such amount may be reduced from time to time pursuant to the
terms of the Credit Agreement.
SECTION 6. Each of Sections 3.05(a)(ii), 3.06 and 3.09 of
the Credit Agreement is hereby amended by deleting each reference
therein to (a) "1995" and substituting in
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lieu thereof a reference to "1996" and (b) "1996" and substituting in
lieu thereof a reference to "1997".
SECTION 7. Schedule 3.08 to the Credit Agreement
(Subsidiaries) is hereby amended by deleting said Schedule 3.08 in its
entirety, and a new Schedule 3.08, in the form of Exhibit B, attached
hereto, is hereby substituted in lieu thereof.
SECTION 8. Schedule 6.01 to the Credit Agreement
(Indebtedness) is hereby amended by deleting said Schedule 6.01 in its
entirety, and a new Schedule 6.01 in the form of Exhibit C, attached
hereto, is hereby substituted in lieu thereof.
SECTION 9. Section 6.02 of the Credit Agreement is hereby
amended by deleting the words "and those specified in clause (g) below"
from the parenthetical contained in the second sentence thereof.
SECTION 10. Schedule 6.02 to the Credit Agreement (Liens)
is hereby amended by deleting said Schedule 6.02 in its entirety, and a
new Schedule 6.02 in the form of Exhibit D, attached hereto, is hereby
substituted in lieu thereof.
SECTION 11. Section 6.07(a) of the Credit Agreement is
hereby amended to read in its entirety as follows:
"(a) permit the ratio of Consolidated Total Indebtedness to
the sum of Consolidated Total Indebtedness and Consolidated Net Worth to
exceed (i) [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT] at any time from the date hereof through December 31, 1998
and (ii) [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT] at
any time thereafter; or"
SECTION 12. By its execution and delivery hereof, the
Borrower represents and warrants:
(a) Before and after giving effect to the amendments
provided for herein, (i) the representations and warranties contained in
Article III of the Credit Agreement, as amended by this Amendment and
Restatement, are true and correct on and as of the date hereof and the
Restatement Effective Date as though made by the Borrower on and as of
each such date, and (ii) no Default or Event of Default has occurred
and is continuing or would result from the execution and delivery of this
Amendment and Restatement; and
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(b) the Borrower has all requisite corporate power and
authority to execute, deliver and perform this Amendment and
Restatement; this Amendment and Restatement has been authorized by
proper corporate proceedings and constitutes the legal, valid and
binding obligation of the Borrower enforceable in accordance with its
terms.
SECTION 13. This Amendment and Restatement shall become
effective as of the Restatement Effective Date; provided, that, (a) the
Agent shall have received:
(i) counterparts of this Amendment and Restatement duly and
validly executed by the Borrower and each Lender;
(ii) an Officer's Certificate in form and substance
satisfactory to the Agent and counsel to the Agent (with
resolutions of the Board of Directors of the Borrower approving
and authorizing the transactions contemplated under this
Amendment and Restatement and the execution, delivery and
performance by the Borrower of this Amendment and Restatement);
(iii) an opinion of Richard P. Bruening, Vice President and
General Counsel of the Borrower in form and substance reasonably
satisfactory to the Agent and counsel to the Agent;
(iv) such other documents and agreements as the Agent may
reasonably request; and
(v) all Facility Fees accrued prior to the Restatement
Effective Date; and
(b) all Standby Loans outstanding under the Credit Agreement
prior to the effectiveness of this Amendment and Restatement shall have
been repaid, together accrued interest and any amounts due pursuant to
Section 2.15 of the Credit Agreement.
SECTION 14. On the Restatement Effective Date, the Credit
Agreement, as amended hereby, shall be deemed incorporated herein by
reference and restated in its entirety.
SECTION 15. The Borrower agrees to pay on demand all costs
and expenses of the Agent or any Lender in connection with the
preparation, execution and delivery of this Amendment and Restatement
(including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Agent with respect thereto).
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SECTION 16. THIS AMENDMENT AND RESTATEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK AND SHALL BE BINDING UPON THE BORROWER, THE AGENT AND
THE LENDERS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
SECTION 17. This Amendment and Restatement may be executed
in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed this Amendment and Restatement
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 and Treasurer
SIGNATURES AND PARTICIPATING BANK GROUP
[INFORMATION SUBJECT TO REQUEST FOR
CONFIDENTIAL TREATMENT]
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SIGNATURES AND PARTICIPATING BANK GROUP
[INFORMATION SUBJECT TO REQUEST FOR
CONFIDENTIAL TREATMENT]
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SIGNATURES AND PARTICIPATING BANK GROUP
[INFORMATION SUBJECT TO REQUEST FOR
CONFIDENTIAL TREATMENT]
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SIGNATURES AND PARTICIPATING BANK GROUP
[INFORMATION SUBJECT TO REQUEST FOR
CONFIDENTIAL TREATMENT]
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SIGNATURES AND PARTICIPATING BANK GROUP
[INFORMATION SUBJECT TO REQUEST FOR
CONFIDENTIAL TREATMENT]