CONFORMED COPY
FIVE-YEAR
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of May 5, 1995
among
KANSAS CITY SOUTHERN INDUSTRIES, INC.,
THE LENDERS NAMED HEREIN,
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT]
and
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT]
TABLE OF CONTENTS
Article Section Page
I. DEFINITIONS
1.01 Defined Terms . . . . . . . . . . . . . . . . . . . . 1
1.02 Terms Generally . . . . . . . . . . . . . . . . . . .12
II. THE CREDITS
2.01 Commitments . . . . . . . . . . . . . . . . . . . . .13
2.02 Loans . . . . . . . . . . . . . . . . . . . . . . . .13
2.03 Competitive Bid Procedure . . . . . . . . . . . . . .14
2.04 Standby Borrowing Procedure . . . . . . . . . . . . .16
2.05 Refinancings. . . . . . . . . . . . . . . . . . . . .16
2.06 Fees. . . . . . . . . . . . . . . . . . . . . . . . .17
2.07 Repayment of Loans; Evidence of Debt. . . . . . . . .17
2.08 Interest on Loans . . . . . . . . . . . . . . . . . .17
2.09 Default Interest. . . . . . . . . . . . . . . . . . .18
2.10 Alternate Rate of Interest. . . . . . . . . . . . . .18
2.11 Termination and Reduction of Commitments. . . . . . .18
2.12 Prepayment. . . . . . . . . . . . . . . . . . . . . .19
2.13 Reserve Requirements; Change in Circumstances . . . .19
2.14 Change in Legality. . . . . . . . . . . . . . . . . .20
2.15 Indemnity . . . . . . . . . . . . . . . . . . . . . .21
2.16 Pro Rata Treatment. . . . . . . . . . . . . . . . . .21
2.17 Sharing of Setoffs. . . . . . . . . . . . . . . . . .22
2.18 Payments. . . . . . . . . . . . . . . . . . . . . . .22
2.19 Taxes . . . . . . . . . . . . . . . . . . . . . . . .22
2.20 Termination or Assignment of Commitments Under
Certain Circumstances . . . . . . . . . . . . . . .24
2.21 Lending Offices and Lender Certificates; Survival
Of Indemnity. . . . . . . . . . . . . . . . . . . .25
III. REPRESENTATIONS AND WARRANTIES
3.01 Corporate Existence and Standing. . . . . . . . . . .25
3.02 Authorization and Validity. . . . . . . . . . . . . .25
3.03 No Conflict; Governmental Consent . . . . . . . . . .25
3.04 Compliance with Laws; Environmental and Safety
Matters . . . . . . . . . . . . . . . . . . . . . .25
3.05 Financial Statements. . . . . . . . . . . . . . . . .26
3.06 No Material Adverse Change. . . . . . . . . . . . . .26
3.07 Ownership of Properties . . . . . . . . . . . . . . .26
3.08 Subsidiaries. . . . . . . . . . . . . . . . . . . . .26
3.09 Litigation; Contingent Obligations. . . . . . . . . .27
3.10 Material Agreements . . . . . . . . . . . . . . . . .27
3.11 Regulation U. . . . . . . . . . . . . . . . . . . . .27
3.12 Investment Company Act; Public Utility Holding
Company Act . . . . . . . . . . . . . . . . . . . .27
3.13 Use of Proceeds . . . . . . . . . . . . . . . . . . .27
3.14 Taxes . . . . . . . . . . . . . . . . . . . . . . . .27
3.15 Accuracy of Information . . . . . . . . . . . . . . .28
3.16 Employee Benefit Plans. . . . . . . . . . . . . . . .28
3.17 No Undisclosed Dividend Restrictions. . . . . . . . .28
IV. CONDITIONS OF LENDING
4.01 All Borrowings. . . . . . . . . . . . . . . . . . . .28
4.02 First Borrowings. . . . . . . . . . . . . . . . . . .29
V. AFFIRMATIVE COVENANTS
5.01 Conduct of Business and Maintenance of Properties . .30
5.02 Insurance . . . . . . . . . . . . . . . . . . . . . .30
5.03 Compliance with Laws and Taxes. . . . . . . . . . . .30
5.04 Financial Statements, Reports, etc. . . . . . . . . .30
5.05 Other Notices . . . . . . . . . . . . . . . . . . . .32
5.06 Access to Properties and Inspections. . . . . . . . .32
5.07 Use of Proceeds . . . . . . . . . . . . . . . . . . .32
5.08 Ratings . . . . . . . . . . . . . . . . . . . . . . .32
VI. NEGATIVE COVENANTS
6.01 Indebtedness. . . . . . . . . . . . . . . . . . . . .32
6.02 Liens . . . . . . . . . . . . . . . . . . . . . . . .33
6.03 Sale and Lease-Back Transactions. . . . . . . . . . .34
6.04 Mergers, Consolidations and Transfers of Assets . . .34
6.05 Transactions with Affiliates. . . . . . . . . . . . .35
6.06 Certain Other Agreements. . . . . . . . . . . . . . .35
6.07 Certain Financial Covenants . . . . . . . . . . . . .35
6.08 Margin Stock. . . . . . . . . . . . . . . . . . . . .35
VII. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . .35
VIII. THE AGENT. . . . . . . . . . . . . . . . . . . . . . . . .38
IX. MISCELLANEOUS
9.01 Notices . . . . . . . . . . . . . . . . . . . . . . .39
9.02 Survival of Agreement . . . . . . . . . . . . . . . .40
9.03 Binding Effect. . . . . . . . . . . . . . . . . . . .40
9.04 Successors and Assigns. . . . . . . . . . . . . . . .40
9.05 Expenses; Indemnity . . . . . . . . . . . . . . . . .42
9.06 Right of Setoff . . . . . . . . . . . . . . . . . . .43
9.07 Applicable Law. . . . . . . . . . . . . . . . . . . .43
9.08 Waivers; Amendment. . . . . . . . . . . . . . . . . .43
9.09 Interest Rate Limitation. . . . . . . . . . . . . . .44
9.10 Entire Agreement. . . . . . . . . . . . . . . . . . .44
9.11 Waiver of Jury Trial. . . . . . . . . . . . . . . . .44
9.12 Severability. . . . . . . . . . . . . . . . . . . . .45
9.13 Counterparts. . . . . . . . . . . . . . . . . . . . .45
9.14 Headings. . . . . . . . . . . . . . . . . . . . . . .45
9.15 Jurisdiction; Consent to Service of Process . . . . .45
9.16 Confidentiality . . . . . . . . . . . . . . . . . . .45
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
Schedule 6.04 Certain Real Property
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 Administrative Questionnaire
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Opinion of Xxxxxxx X. Xxxxxxxx, Vice President
and General Counsel of the Borrower
Exhibit E Compliance Certificate
Exhibit F Form of Confidentiality Agreement
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
dated as of May 5, 1995, among KANSAS CITY SOUTHERN INDUSTRIES,
INC., a Delaware corporation (the "Borrower"), the lenders
listed in Schedule 2.01 (the "Lenders") [INFORMATION SUBJECT TO
REQUEST FOR CONFIDENTIAL TREATMENT] as administrative agent for
the Lenders (in such capacity, the "Agent").
The Borrower (such term and each other capitalized term used but not
otherwise defined herein having the meaning assigned to it in Article I) 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 Maturity Date a principal amount not in
excess of $300,000,000 at any time outstanding. The proceeds of such
borrowings are to be used for general corporate purposes, including to provide
backup liquidity for commercial paper. The Borrower 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
Lenders are willing to extend such credit to the Borrower on the terms and
subject to the conditions herein set forth.
Accordingly, the Borrower, the Lenders and the Agent agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"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 in the form of Exhibit B hereto.
"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:
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT]
For purposes of the foregoing, (I) if the ratings established or deemed
to have been established by Xxxxx'x and S&P shall fall within different
Categories, the lower rating shall be disregarded, (ii) if Xxxxx'x 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 Xxxxx'x or S&P shall be changed (other than as a
result of a change in the rating system of Xxxxx'x 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 Xxxxx'x or S&P shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt obligations, the
Borrower 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 date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Agent as the then current net annual assessment rate that will be employed in
determining amounts payable by the Agent to the Federal Deposit Insurance
Corporation (or any successor) for insurance by such Corporation (or such
successor) of time deposits made in dollars at the Agent's domestic offices.
"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.
"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.
"Xxxxxx" shall mean Xxxxxx Associates, Inc., a Delaware corporation.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"Borrowing" shall mean 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.
"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, 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 date hereof 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 date hereof or
(ii) at any time, any person, 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.
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT]
"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 hereunder as set forth in Schedule 2.01 hereto, as such Lender's
Commitment may be permanently terminated or reduced from time to time pursuant
to Section 2.11. 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 April 1995.
"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 (including amortization of debt discount) 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 Credit Agreements" shall mean the 364-Day and the Three-Year credit
agreements among DST Systems, the Lenders and Chase, as administrative agent.
"DST Systems" shall mean DST Systems, Inc., a Missouri corporation which
shall be permitted under the DST Credit Agreements to reorganize as 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 A Agreement" shall mean the 364-day credit agreement dated the
date hereof among the Borrower, the Lenders and the Agent.
"Facility Fee" shall have the meaning assigned to such term in
Section 2.06(a).
"Facilities" shall mean the credit arrangements under this Agreement and
the Facility A Agreement.
"Fee Letter" shall mean the letter agreement dated as of May 2, 1995
among the Borrower, DST and the Agent.
"Fees" shall mean the Facility 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 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.
"Holding Company" shall mean a corporation which, at all times prior to
an Offering, is a direct, wholly owned Delaware subsidiary of the Borrower.
"ICC" shall mean the Interstate Commerce Commission or any successor
Federal agency charged with similar regulation of common carriers.
"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 partnership in which such person is a general
partner.
"Index Debt" shall mean senior, unsecured, non-credit-enhanced, long-term
indebtedness for borrowed money of the Borrower.
"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 and
(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; 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.
"KCSR" shall mean The Kansas City Southern Railway Company, a Missouri
corporation.
"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, an interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the rate at which dollar deposits approximately
equal in principal amount to (I) in the case of a Standby Borrowing the
Agent's portion of such Eurodollar Borrowing and (ii) in the case of a
Competitive Borrowing, a principal amount that would have been the Agent's
portion of such Competitive Borrowing had such Competitive Borrowing been a
Standby Borrowing, and for a maturity comparable to such Interest Period are
offered to 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 or a Fixed Rate Loan, as permitted hereby.
"Loan Documents" shall mean this Agreement, the Facility A 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 May 5, 2000.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"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.
"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.
"Offering" shall mean (a) the closing of an initial public offering and
sale of shares of common stock of DST Systems, or (b) the closing of an
initial public offering and sale of shares of common stock of the Holding
Company and the contribution of net proceeds of such offering and sale to
DST Systems, which in the case of either (a) or (b) above results in the
receipt by DST Systems of net cash proceeds equal to at least the lower of
(I) all of the net cash proceeds of such offering and sale (which in any event
shall not be less than [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT]) and (ii) [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT].
"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 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.
"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 G" shall mean Regulation G 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.
"Reincorporation Transaction" shall mean a transaction prior to an
Offering in which DST Systems becomes a subsidiary of the Holding Company or
merges with or into the Holding Company or a direct, wholly owned Delaware
subsidiary of the Holding Company, and in the event of any such merger, (a)
the surviving company in such merger remains or becomes the Borrower under the
DST Credit Agreements and remains or becomes liable for all the Obligations to
the same extent as the original Borrower, (b) no person receives any
consideration other than common stock of such surviving corporation or the
Holding Company, and (c) the assets and liabilities of the surviving
corporation are the same as those of DST Systems immediately prior to such
merger.
"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 at least 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
holding at least 50% of the aggregate unpaid principal amount of the Loans or
(b)(I) Lenders in the aggregate holding at least 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 holding at least 66-2/3% of the aggregate unpaid principal amount of
the Loans.
"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.
"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) prior to an Offering, DST Systems and the Holding Company,
(c) Janus and (d) 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.
"S&P" shall mean Standard and Poor's Ratings Group.
"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.
"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.
"subsidiary" shall mean, with respect to any person, any corporation,
partnership, 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 are, at the time any determination is being made, owned, controlled
or held.
"Subsidiary" shall mean any subsidiary of the Borrower.
"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.
"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 .
"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 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 CREDITS
SECTION 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 shall be deemed to have used such Commitment pursuant
to Section 2.16, subject, however, to the conditions that (a) at no time shall
(I) the sum of (x) the outstanding aggregate principal amount of all Standby
Loans made by all Lenders plus (y) the outstanding aggregate principal amount
of all Competitive Loans made by all Lenders exceed (ii) the Total Commitment,
and (b) at all times the outstanding aggregate principal amount of all Standby
Loans made by each Lender shall equal the product of (I) the percentage which
its Commitment represents of the Total Commitment times (ii) the outstanding
aggregate principal amount of all Standby Loans made pursuant to Section 2.04.
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. 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 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 and (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).
(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. 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. 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. 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 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, 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 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. 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.
SECTION 2.06.
Fees. (a) The Borrower agrees to pay to each Lender, through the Agent
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT], a facility
fee (a "Facility Fee") [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT] from time to time in effect on [INFORMATION SUBJECT TO REQUEST FOR
CONFIDENTIAL TREATMENT]. All Facility Fees shall be computed on the basis of
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT]. The Facility Fee
due to each Lender shall commence to accrue on the date hereof and shall cease
to accrue on [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT].
(b) 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.
(c) 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 Debt. The outstanding
principal balance of each Competitive Loan and Standby Loan shall be payable
on the last day of the Interest Period applicable to such Loan and on the
Maturity Date. Each Competitive Loan and each Standby 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.
SECTION 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.
SECTION 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 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 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 which would
reduce the Total Commitment to an amount less than the aggregate outstanding
principal amount of the Competitive Loans.
(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.
SECTION 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 Standby Loans outstanding will not exceed
the Total Commitment after giving effect to such termination or reduction.
(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
otherwise 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 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.
(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 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. 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 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 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) 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 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 as a result of which the unpaid principal portion of the
Standby Loans shall be proportionately less than the unpaid principal portion
of the Standby 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
of such other Lender, so that the aggregate unpaid principal amount of the
Standby Loans and participations in the Standby Loans held by each Lender
shall be in the same proportion to the aggregate unpaid principal amount of
all Standby Loans then outstanding as the principal amount of its Standby
Loans prior to such exercise of banker's lien, setoff or counterclaim or other
event was to the principal amount of all Standby 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 in a Standby Loan 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 directly to the
Borrower in the amount of such participation.
SECTION 2.18. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) 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 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 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. 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 1001 or Form 4224, 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
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 and (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 made by it hereunder and all other amounts accrued for
its account or owed to it hereunder.
SECTION 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.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Lenders that:
SECTION 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 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 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 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 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 Statements. (a) The Borrower 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, 1994, 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 March 31, 1995, certified by its
chief financial officer. Such financial statements present fairly the
financial condition and results of operations of the Borrower 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 the Borrower and the Consolidated Subsidiaries as of the dates
thereof. Such financial statements were prepared in accordance with GAAP
applied on a consistent basis.
(b) The Borrower 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 the Borrower as set forth
in the Confidential 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
the Borrower's best estimates as of the date of the Projections of the
financial performance of the Borrower .
SECTION 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, 1994.
SECTION 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. Subsidiaries. Schedule 3.08 contains an accurate list of
all of the joint ventures and Subsidiaries of the Borrower 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 non-assessable.
SECTION 3.09. Litigation; Contingent Obligations. Except as set forth
in Schedule 3.09 or as disclosed in the Borrower's Annual Report on Form 10-K
dated December 31, 1994 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 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 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
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 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. 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 Information. No information, exhibit or
report furnished by the Borrower or any Subsidiary 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 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 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.
ARTICLE IV. CONDITIONS OF LENDING
The obligations of the Lenders to make Loans hereunder are subject to
the satisfaction of the following conditions:
SECTION 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.
(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 Borrowing. On the date hereof:
(a) The Agent shall have received a favorable written opinion of
Xxxxxxx X. Xxxxxxxx, Vice-President and General Counsel of 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 [INFORMATION
SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT], 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 [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT], 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) The DST Credit Agreements shall have been, or shall simultaneously
be, executed and delivered.
(g) The Borrower shall have terminated the Total Commitment under the
Credit Agreement dated as of December 8, 1992 (the "1992 Credit
Agreement"), between the Borrower, the lenders named therein and
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT], in the
manner provided therein and any Loans outstanding (other than any
Competitive Loans that have been made by any Lenders) thereunder
(together with accrued interest on such Loans) and all accrued fees and
other amounts due thereunder shall have been paid in full in the manner
provided therein (capitalized terms used in this clause (g) having the
meanings ascribed to them in the 1992 Credit Agreement). The Borrower
shall not have requested any additional Competitive Loans under the 1992
Credit Agreement, and each Competitive Loan that has been made by any
Lenders under the 1992 Credit Agreement that remains outstanding after
the date hereof shall be deemed to reduce the available Commitments
hereunder by the principal amount of such Competitive Loan until the
repayment of such Competitive Loan.
ARTICLE V. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect or the principal of or interest on any Loan,
any Fees or any other expenses or amounts payable under any Loan Document
shall be unpaid, unless the Required Lenders shall otherwise consent in
writing:
SECTION 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 at any
time prior to an Offering, DST may implement the Reincorporation Transaction,
in which case, the Borrower agrees that upon such reorganization, it will
cause DST to deliver to the Agent a copy of the certificate of incorporation
of DST, certified by the Secretary of State of the State of Delaware.
(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. 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 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. 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 [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT]
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 [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT]
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
ICC; 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 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 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 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 G, 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.
SECTION 5.08. Ratings. The Borrower will use commercially reasonable
efforts to obtain and maintain ratings of Index Debt at all times from Xxxxx'x
and S&P (unless, in either case, such rating agency shall cease to rate
corporate debt obligations) and will promptly notify the Lenders upon
obtaining knowledge of any change (or prospective change) in, or cessation (or
prospective cessation) of, such ratings.
ARTICLE VI. NEGATIVE COVENANTS
The Borrower covenants and agrees with each Lender and the Agent that,
so long as this Agreement shall remain in effect or the principal of or
interest on any Loan, any Fees or any other expenses or amounts payable under
any Loan Document shall be unpaid, unless the Required Lenders shall otherwise
consent in writing:
SECTION 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
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT] 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. 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 [INFORMATION SUBJECT TO REQUEST
FOR CONFIDENTIAL TREATMENT] 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) and those specified in clause (g) 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), does not exceed
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT] 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 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), 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 [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT] of
Consolidated Net Worth on any date of determination.
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) the Borrower may permit DST Systems to
implement the Reincorporation Transaction; (c) the Borrower may sell the real
property listed in Schedule 6.04, (d) the Borrower may sell Xxxxxx to DST,
(e) the Borrower may complete an Offering and transfer capital stock of
DST Systems (or of the Holding Company) after an Offering as consideration for
acquisitions of capital stock or assets (other than cash or cash equivalents)
and (f) 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 [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT]
of
Consolidated Net Worth on any date of determination to any other person.
SECTION 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 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 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
(I)[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT] at any
time
from the date hereof through December 31, 1995 and (ii)[INFORMATION SUBJECT TO
REQUEST FOR CONFIDENTIAL TREATMENT] at any time thereafter; or
(b) permit the assets of the Subsidiaries, other than the Significant
Subsidiaries, to represent in the aggregate at any time more than [INFORMATION
SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT] of Consolidated Total Assets.
SECTION 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 [INFORMATION
SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT] 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 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 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 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 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 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
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT] 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 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) the Borrower shall cease to own beneficially at least 90% of the
outstanding voting securities of KCSR or at least 80% of the outstanding
voting securities of Janus or, prior to an Offering, DST Systems;
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 AGENT
In order to expedite the transactions contemplated by this Agreement,
[INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL TREATMENT] 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. MISCELLANEOUS
SECTION 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 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000-0000, Attention of the Vice President and Chief Financial
Officer (Telecopy No. (000) 000-0000), with a copy to the Senior Vice
President and General Counsel (Telecopy No. (000) 000-0000);
(b)
if to the Agent, to it at [INFORMATION SUBJECT TO REQUEST FOR
CONFIDENTIAL TREATMENT] for Standby Borrowings and [INFORMATION SUBJECT
TO REQUEST FOR CONFIDENTIAL TREATMENT] for Competitive Borrowings, with
a copy to [INFORMATION SUBJECT TO REQUEST FOR CONFIDENTIAL
TREATMENT];
and
(c) if to a Lender, to it at its address (or telecopy number) set forth
in Schedule 2.01 or in the Assignment and Acceptance pursuant to which
such Lender shall have become a party hereto.
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 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 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.
SECTION 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 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 assigning Lender shall not assign any percentage of its
rights and obligations under this Agreement without assigning the same
percentage of its rights and obligations under the Facility A Agreement, in
each case to the same assignee, (v) 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 (vi) 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, 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 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.
SECTION 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 [INFORMATION SUBJECT TO
REQUEST FOR CONFIDENTIAL TREATMENT], 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 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 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; 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 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 hereunder without the prior written consent of the Agent.
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 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 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 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. 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. 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. 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 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. 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 non-confidential basis from a source other than
the Borrower or its Affiliates or the Agent, or (c) was available to such
Lender on a non-confidential 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.
IN WITNESS WHEREOF, the Borrower, 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/ Xxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President and Chief
Financial Officer
SIGNATURES AND PARTICIPATING BANK GROUP
[INFORMATION SUBJECT TO REQUEST FOR
CONFIDENTIAL TREATMENT]
