Exhibit 4.16.1
FIRST AMENDMENT dated as of November 19, 1998 (this
"AMENDMENT") to the AMENDED AND RESTATED FIVE-YEAR COMPETITIVE
ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT dated as of
December 30, 1996 (as amended from time to time, the "CREDIT
AGREEMENT"; capitalized terms used and not otherwise defined
herein having the meaning assigned to them in the Credit
Agreement), among DST SYSTEMS, INC., a Delaware corporation (the
"BORROWER"); the lenders named therein (the "LENDERS") and THE
CHASE MANHATTAN BANK, as syndication agent and as administrative
agent for the Lenders (in such capacity, the "ADMINISTRATIVE
AGENT").
A. The Borrower has requested, and the Lenders and the
Administrative Agent have agreed, to amend certain sections of the Credit
Agreement on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements
contained in this Amendment and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. AMENDMENT OF SECTION 1.01 OF THE CREDIT AGREEMENT.
Section 1.01 of the Credit Agreement is hereby amended by amending the last
sentence of the definition of "Indebtedness" to read in its entirety as follows:
"The Indebtedness of any person (other than a Nonsignificant
Subsidiary) shall include the Indetedness of any partnership in which
such person is a general partner.".
SECTION 2. AMENDMENT OF SECTION 3.11 OF THE CREDIT AGREEMENT.
Section 3.11 of the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
"SECTION 3.11. FEDERAL RESERVE REGULATIONS. The execution,
delivery and performance of the Loan Documents, the Borrowings hereunder and the
use of proceeds hereof will not violate or be inconsistent with any of the
provisions of Regulation U, Regulation T or Regulation X."
SECTION 3. AMENDMENT OF SECTION 3.13 OF THE CREDIT AGREEMENT.
Section 3.13 of the Credit Agreement is hereby amended by adding the following
sentence at the end thereof:
"No part of the proceeds of any Loan will be used to purchase
or "carry" (as defined in Regulation U) Margin Stock."
SECTION 4. AMENDMENT OF SECTION 5.07 OF THE CREDIT AGREEMENT.
Section 5.07 of the Credit Agreement is hereby amended by adding the following
sentence at the end thereof:
"No part of the proceeds of any Loan will be used to purchase
or "carry" (as defined in Regulation U) Margin Stock."
SECTION 5. AMENDMENT OF SECTION 6.04 OF THE CREDIT AGREEMENT.
Section 6.04 of the Credit Agreement is hereby amended to read in its entirety
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, (b) if at the time thereof and immediately
after giving pro forma effect to any such transaction as if such transaction had
been completed on the first day of the quarterly period most recently ended, no
Event of Default or Default shall have occurred and be continuing (i) any person
may merge into the Borrower in a transaction in which the Borrower is the
surviving corporation, (ii) any person may merge into or
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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) any
Subsidiary may merge into or consolidate with (in each case, an "Acquisition")
any person (the "Acquiree") if such Subsidiary is the surviving entity or the
Acquiree is the surviving entity and becomes a Subsidiary as a result of such
Acquisition and (iv) the Borrower and the Subsidiaries may sell, transfer, lease
or dispose of any capital stock of any Subsidiary or any assets out of the
ordinary course of business having depreciated book values (determined in
accordance with GAAP) that in the aggregate for all such capital stock or all
such assets so disposed of during the term of this Agreement do not exceed the
greater of $10,000,000 and 10%of Consolidated Net Worth on any date of
determination to any other person.
SECTION 6. AMENDMENT OF SECTION 6.08 OF THE CREDIT AGREEMENT.
Section 6.08 of the Credit Agreement is hereby deleted in its entirety and
replaced with "INTENTIONALLY OMITTED".
SECTION 7. WAIVER. The Lenders hereby waive any Default or
Event of Default that may have occurred as a result of the operation of Section
3.11 or 6.08. The foregoing waiver shall be retroactive to December 30, 1996.
SECTION 8. REPRESENTATIONS AND WARRANTIES. The Borrower
represents and warrants to the Administrative Agent and to each of the Lenders
that:
(a) This Amendment has been duly authorized, executed and
delivered by the Borrower, and each of this Amendment and the Credit
Agreement, after giving effect to this Amendment, constitutes its
legal, valid and binding obligations enforceable in accordance with
their terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally, or by general
equity principles (whether enforcement is sought by proceedings in
equity or at law), including but not limited to principles governing
the availability of the remedies of specific performance and injunctive
relief.
(b) The representations and warranties set forth in Article
III of the Credit Agreement, after giving effect to this Amendment, and
in the other Loan Documents are true and correct in all material
respects as of 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, in which case they were true and
correct in all material respects on and as of such earlier date.
(c) As of the date hereof, no Default or Event of Default has
occurred and is continuing or would result from the execution and
delivery of this Amendment.
SECTION 9. EFFECTIVENESS. This Amendment shall become
effective when the Administrative Agent shall have received copies hereof that,
when taken together, bear the signatures of the Borrower, the Administrative
Agent and the Required Lenders.
SECTION 10. APPLICABLE LAW. THIS AMENDMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 11. COUNTERPARTS. This Amendment 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. Delivery of an
executed counterpart of a signature page by facsimile transmission shall be
effective as delivery of a manually executed counterpart of this Amendment.
SECTION 12. EXPENSES. The Borrower agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Amendment, including the reasonable fees, charges and disbursements of
Cravath, Swaine & Moore, counsel for the Administrative Agent.
SECTION 13. LIMITED EFFECT OF AMENDMENT. Except as expressly
set forth herein, this Amendment shall not by implication or otherwise limit,
impair, constitute a Amendment of, or otherwise affect the rights and remedies
of the Lenders and the Administrative Agent under the Credit Agreement, or
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement, all of
which are ratified and affirmed in all respects and shall continue in
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full force and effect. This Amendment shall apply and be effective only with
respect to the provisions of the Credit Agreement specifically referred to
herein.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first written above.
DST SYSTEMS, INC., as Borrower,
by /s/ Kenneth V. Hager
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Name: Kenneth V. Hager
Title: Vice President, Chief Financial
Officer and Treasurer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
by /s/ Lenard Werner
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Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
by /s/ Walter R. Wolff
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Name: Walter R. Wolff
Title: Joint General Manager
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
by /s/ Armund J. Schoen, Jr.
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Name: Armund J. Schoen, Jr.
Title: Senior Vice President
NATIONSBANK, N.A.,
by /s/ Kevin C. Leader
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Name: Kevin C. Leader
Title: Vice President
UMB Bank, n.a.,
by /s/ Douglas F. Page
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Name: Douglas F. Page
Title: Executive Vice President
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MERCANTILE BANK.,
by /s/Gary S. Wilcutt
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Name: Gary S. Wilcutt
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
by /s/Chris T. Horgan
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Name: Chris T. Horgan
Title: Vice President