(..continued)
5
CONFORMED COPY
AAA AGREEMENT
ASSIGNMENT, ASSUMPTION AND AMENDMENT
AGREEMENT (this "AAA Agreement") dated as of January
11, 2000, among KANSAS CITY SOUTHERN INDUSTRIES,
INC., a Delaware corporation ("KCSI"), XXXXXXXX
FINANCIAL, INC., a Delaware corporation ("Xxxxxxxx"),
and THE CHASE MANHATTAN BANK, a New York banking
corporation, as agent (in such capacity, the "Agent")
for the Lenders (as defined below) and as Swingline
Lender (in such capacity, the "Swingline Lender"),
relating to the Credit Agreement dated as of January
11, 2000 (the "Credit Agreement"), among KCSI, the
lenders from time to time party thereto (the
"Lenders"), The Chase Manhattan Bank, as Agent and as
Swingline Lender, Bank of America, N.A., as
Documentation Agent, and Fleet National Bank, as
Syndication Agent. Capitalized terms used and not
defined herein shall have the meanings assigned to
such terms in the Credit Agreement or in the Amended
Credit Agreement (as defined below), as applicable.
WHEREAS, KCSI, the Lenders, the Swingline Lender and the Agent
are parties to the Credit Agreement;
WHEREAS, KCSI and Xxxxxxxx have entered into a Contribution
Agreement dated as of July 7, 1999, which, effective as of July 1, 1999 as
between KCSI and Xxxxxxxx, provided for the transfer of certain capital stock,
investments and other assets and rights as provided therein (the "Contribution
Agreement");
WHEREAS, the parties hereto desire to provide that in
accordance with the Contribution Agreement and in order to complete the
Assumption in accordance with the Credit Agreement, KCSI's rights and
obligations under the Credit Agreement, including the Commitments thereunder and
any outstanding Loans, shall be assigned and delegated to, and assumed by,
Xxxxxxxx, all in accordance with the Credit Agreement;
WHEREAS, in the event that KCSI and Xxxxxxxx consummate the
Assumption, the parties hereto have agreed that this AAA Agreement shall be
executed by KCSI, Xxxxxxxx, the Swingline Lender and the Agent, on behalf of the
Lenders, whereupon KCSI shall be released from all obligations under the Credit
Agreement and the Credit Agreement shall be amended and restated as provided
herein (the Credit Agreement, after giving effect to the amendments provided for
in this AAA Agreement, the "Amended Credit Agreement") with Xxxxxxxx assuming
KCSI's obligations under the Credit Agreement and becoming the sole obligor
under the Amended Credit Agreement;
WHEREAS, the Lenders, the Swingline Lender and the Agent are
willing, subject to the terms and conditions of this AAA Agreement, to effect
certain amendments to the Credit Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual agreements
contained in this AAA Agreement and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. Assignment, Delegation, Assumption and Release.
Subject to the conditions set forth in Section 4 hereof, (a) KCSI hereby assigns
and delegates to Xxxxxxxx all its rights and obligations under (i) the Credit
Agreement, including the Commitments thereunder and any outstanding Loans, and
(ii) the Fee Letter and the commitment letter executed in connection therewith
(such assigned and delegated obligations being collectively referred to herein
as the "Assigned Obligations"), (b) Xxxxxxxx hereby assumes and agrees to
perform the Assigned Obligations and (c) KCSI is hereby released from all
obligations under the Credit Agreement, the Fee Letter and the commitment letter
executed in connection therewith.
SECTION 2. Amendment. Subject to the conditions set forth in
Section 4 hereof:
-----------
(a) The Credit Agreement, including all schedules and exhibits
thereto, is hereby amended, subject to applicable provisions set forth
therein as to the survival of certain rights and obligations, into an
amended and restated credit agreement (the "Amended Credit Agreement")
identical in form and substance to the Credit Agreement except as
expressly modified below. Each reference in the Amended Credit
Agreement and in the exhibits thereto to "the Borrower" or to "Kansas
City Southern Industries, Inc." shall be deemed to be a reference to
Xxxxxxxx.
(b) The third paragraph of the preamble of the Amended Credit
Agreement is amended to read in its entirety as follows:
"The proceeds of borrowings hereunder are to
be used for general corporate purposes including,
without limitation, (a) to provide liquidity for a
commercial paper program and (b) to finance
nonhostile acquisitions."
(c) Section 1.01 of the Credit Agreement is hereby amended as
follows:
(i) The following new definitions shall be added to
Section 1.01 of the Credit Agreement in the appropriate
alphabetical order and shall read in their entirety as
follows:
"'Guarantee Agreement' shall mean a
Guarantee Agreement, substantially in the form of
Exhibit A to the AAA Agreement, made by the Borrower
in favor of the Agent for the benefit of the
Lenders."
"'Guarantor' shall mean Xxxxxxxx."
"'Subsidiary Borrowers' shall have the
meaning assigned to such term in Section 2.23."
(ii) The following definitions are hereby deleted:
"Consolidated Total Assets",
"Index Debt", and
"STB".
(iii) The following definitions are amended to read
in their entirety as follows:
"'Applicable Percentage' shall mean on any
date, with respect to (a) the Loans comprising any
Eurodollar Standby Borrowing, 0.35% per annum, (b)
the Loans comprising any ABR Borrowing, 0.0% per
annum, and (c) the Facility Fee, 0.15% per annum."
"'Loan Documents' shall mean this Agreement,
the AAA Agreement, the Guarantee Agreement, the Fee
Letter (and the commitment letter executed in
connection therewith) and any assignment document
pursuant to which the Borrower shall assign and
delegate its rights and obligations to a Subsidiary
Borrower in accordance with Section 2.23."
"'Obligations' shall mean all unpaid
principal of and accrued and unpaid interest on the
Loans, all accrued and unpaid Fees and all other
obligations of the Borrower and the Subsidiary
Borrowers to the Lenders or to any Lender or the
Agent arising under the Loan Documents."
"'Significant Subsidiary' shall mean, on any
date of determination, each of (a) Janus, (b) Xxxxxx,
(c) Xxxxxx LLC, a Subsidiary of Xxxxxx, and (d) any
Subsidiary the assets of which represent on such date
more than 10% of the consolidated total assets of the
Borrower and the Consolidated Subsidiaries determined
in accordance with GAAP."
(d) Section 2.22(b) of the Credit Agreement is amended by
deleting the reference therein to "account number 987-087-8577" and
replacing it with a reference to "account number 987-096-4961".
(e) A new Section 2.23 shall be added to the text and the
table of contents of the Credit Agreement and shall read in its
entirety as follows:
"SECTION 2.23. Delegation and Assumption of Loans.
The Borrower may from time to time assign and delegate its
rights and obligations in respect of all or a portion of any
Borrowing and its obligations under the Loan Documents to one
or more of its Subsidiaries that is a domestic Subsidiary
(each such Subsidiary, a "Subsidiary Borrower"); provided that
such Subsidiary Borrower will assume such obligations,
pursuant to an assignment that will result in the Borrower
being relieved of its obligations as a Borrower in respect of
the Borrowing or portion thereof so assigned (but not any
obligations in respect of such Borrowing that arise under
other Loan Documents in the Borrower's capacity as a
Guarantor) and the applicable Subsidiary Borrower succeeding
to all such obligations. The Lenders agree to permit such
assignments, subject to the prior satisfaction of the
following conditions in respect of each such assignment:
(a) each such assignment shall be made
pursuant to documentation reasonably satisfactory in
form and substance to the Agent;
(b) each such assignment shall be subject to
all the terms and conditions hereof that would be
applicable to the relevant type of Borrowing on the
date of such assignment by the Borrower; and
(c) the Guarantee Agreement shall have been
executed and delivered by Xxxxxxxx and shall be in
full force and effect; and
(d) the Agent may, in its sole discretion,
require, as an additional condition to any such
assignment, the delivery of such certificates and
legal opinions as to the assignment and the assignee
as it shall reasonably request including evidence of
resolutions duly adopted by the Board of Directors of
the applicable Subsidiary Borrower authorizing the
execution, delivery and performance of the applicable
Loan Documents and the borrowings thereunder, and
that such resolutions have not been modified,
rescinded or amended and are in full force and
effect."
(f) Section 3.02 of the Credit Agreement is amended to read
in its entirety as follows:
"SECTION 3.02. Authorization and Validity. Each of
the Borrower and each Subsidiary Borrower has the corporate
power and authority and legal right to execute and deliver the
Loan Documents to which it is a party and to perform its
obligations thereunder (collectively, the "Transactions"). The
Transactions have been duly authorized by proper corporate
proceedings, and the Loan Documents constitute legal, valid
and binding obligations of the Borrower and the Subsidiary
Borrowers enforceable against the Borrower and the Subsidiary
Borrowers in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency,
moratorium or similar laws affecting the enforcement of
creditors' rights generally."
(g) Section 3.03 of the Credit Agreement is amended by
deleting the parenthetical "(including, without limitation, the
Interstate Commerce Commission Termination Act of 1995 (the "Interstate
Commerce Act") and the regulations promulgated thereunder)" from the
fourth and fifth lines thereof.
(h) Section 3.04(a) of the Credit Agreement is amended by
deleting the parenthetical "(including, without limitation, the
Interstate Commerce Act and the Railway Labor Act)" from the end
thereof.
(i) Section 5.01 of the Credit Agreement is hereby amended to
read in its entirety as follows:
"SECTION 5.01. Conduct of Business; Maintenance of
Ownership of Subsidiaries and Maintenance of Properties. (a)
The Borrower will, and will cause each Significant Subsidiary
to, carry on and conduct its business in substantially the
same manner and in substantially the same fields of enterprise
as it is presently conducted and to do all things necessary to
remain duly incorporated, validly existing and in good
standing as a domestic corporation in its jurisdiction of
incorporation and maintain all requisite authority to conduct
its business in each jurisdiction in which its business is
conducted.
(b) The Borrower will at all times own, directly or
indirectly, not less than 66-2/3% of the outstanding voting
securities of both Janus and Xxxxxx, in each case free and
clear of any Liens on such securities.
(c) The Borrower will, and will cause each
Significant Subsidiary to, do all things necessary to
maintain, preserve, protect and keep their properties material
to the conduct of their business in good repair, working order
and condition, and make all necessary and proper repairs,
renewals and replacements so that their businesses carried on
in connection therewith may be properly conducted at all
times.
(d) If the Spin-Off is completed, the Borrower will
cause the Spin-Off to be completed (i) in accordance with
applicable law, (ii) as disclosed in its Form 10 previously
delivered to the Agent and (iii) on terms and with results
consistent with the pro forma financial information previously
delivered to the Agent and the Lenders."
(j) Section 5.03(a) of the Credit Agreement is amended by
deleting the words ", the Interstate Commerce Act" from the
parenthetical contained therein.
(k) Section 5.04(g) of the Credit Agreement is amended by
deleting the words "and filed by any of them with the STB" from the end
thereof.
(l) Section 6.01(a) of the Credit Agreement is amended by (x)
deleting the words "railroad transportation or" from the second line of
clause 6.01(a)(ii); (y) deleting the word "and" at the end of clause
6.01(a)(iv); inserting new clauses 6.01(a)(v) and 6.01(a)(vi) that read
in their entirety as follows:
"(v) Indebtedness of the Subsidiary Borrowers under the Loan
Documents;
(vi) Indebtedness of Subsidiaries under the 1999 Credit
Agreement; and",
and (z) renumbering existing clause 6.01(a)(v) as clause 6.01(a)(vii).
(m) Section 6.03 of the Credit Agreement is amended by
deleting the last sentence thereof.
(n) Section 6.04 of the Credit Agreement is amended to read
as follows:
SECTION 6.04. Mergers, Consolidations and Transfers
of Assets. The Borrower will not, and will not permit any
Subsidiary to, merge into or consolidate with any other
person, or permit any other person to merge into or
consolidate with it, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions)
all or any substantial part of its assets (whether now owned
or hereafter acquired) or any capital stock of any Subsidiary,
except that (a) the Borrower and any Subsidiary may sell
assets in the ordinary course of business and (b) if at the
time thereof and immediately after giving effect thereto no
Event of Default or Default shall have occurred and be
continuing (i) any wholly owned Subsidiary may merge into the
Borrower in a transaction in which the Borrower is the
surviving corporation, (ii) any wholly owned Subsidiary may
merge into or consolidate with any other wholly owned
Subsidiary in a transaction in which the surviving entity is a
wholly owned Subsidiary and no person other than the Borrower
or a wholly owned Subsidiary receives any consideration, (iii)
the Borrower and the Subsidiaries may sell, transfer, lease or
dispose of assets out of the ordinary course of business
having depreciated book values (determined in accordance with
GAAP) that in the aggregate for all assets so disposed of
during the term of this Agreement (other than pursuant to the
following clause (iv)) do not exceed 15% of Consolidated Net
Worth on any date of determination to any other person and
(iv) the Borrower may sell the common stock of DST Systems for
cash to a third party buyer that is not an Affiliate of the
Borrower."
(o) Section 6.07 of the Credit Agreement is amended to read
in its entirety as follows:
"SECTION 6.07. Certain Financial Covenants. The
Borrower will not:
----------------------------
(a) permit at any date the ratio of
Consolidated Total Indebtedness on such date to
Consolidated EBITDA for the period of four quarters
most recently ended as of such date to exceed 2.0 to
1.0;
(b) permit for any period of four
consecutive fiscal quarters the ratio of Consolidated
EBITDA for such period to Consolidated Interest
Expense for such period to be less than 4.0 to 1.0;
or
(c) permit Consolidated Net Worth to be less
than $325,000,000 at any time."
(p) Article VII, clause (m) is amended to read as follows:
"(m) the Borrower shall cease to own beneficially at
least 66-2/3% of the outstanding voting securities of either
Xxxxxx or Janus."
(q) Section 9.01(a) of the Credit Agreement is hereby amended
to read as follows:
"(a) if to the Borrower, to it at 000 Xxxx 00xx
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000-0000, Attention of the
Vice President - Finance (Telecopy No. (000) 000-0000), with a
copy to the Vice President and Secretary (Telecopy No. (816)
983-1192);"
(r) Subsection 9.08(b) of the Credit Agreement is hereby
amended by (i) deleting the word "or" at the end of clause 9.08(b)(ii)
and (ii) inserting a new clause 9.08(b)(iv) immediately following
clause 9.08(b)(iii) that reads in its entiretly as follows:
"or (iv) release the Guarantor from its Guarantee
under the Guarantee Agreement, or limit its liability in
respect of such Guarantee, in any case without the prior
written consent of each Lender".
(s) Each reference to "Kansas City Southern Industries, Inc."
in the Exhibits to the Credit Agreement shall be changed to a reference
to "Xxxxxxxx Financial, Inc." in the Amended Credit Agreement.
(t) The table of contents of the Credit Agreement is amended
as follows:
(i) Adding the following Section reference:
"Section 2.23 Delegation and Assumption of
Borrowings..."
(ii) Revising the following Section reference:
"Section 5.01 Conduct of Business;
Maintenance of Ownership of Subsidiaries and
Maintenance of Properties..."
(u) Each of Schedule 3.08, 3.09, 3.17, 6.01, 6.02 and 6.04 to
the Credit Agreement is hereby replaced by Schedule 3.08, 3.09, 3.17,
6.01, 6.02 and 6.04 attached hereto.
SECTION 3. Representations and Warranties. Each of KCSI and
Xxxxxxxx represents and warrants to each of the Lenders that:
--------------------------------
(a) This AAA Agreement has been duly authorized, and executed
and delivered by it and constitutes its legal, valid and binding
obligation enforceable in accordance with its terms.
(b) The representations and warranties set forth in Article
III of each of the Credit Agreement and the Amended Credit Agreement,
are true and correct in all material respects on the date hereof with
the same effect as if made on the date hereof, except to the extent
such representations and warranties expressly relate to an earlier
date.
(c) Before and after giving effect to this AAA Agreement, no
Default or Event of Default has occurred and is continuing under the
Credit Agreement or the Amended Credit Agreement, as the case may be.
SECTION 4. Conditions to Effectiveness. This AAA Agreement
shall become effective as of the date (the "Effective Date") first above written
upon the satisfaction of the following conditions precedent (capitalized terms
used in this Section 4 shall have the meanings assigned thereto in the Amended
Credit Agreement):
(a) The Agent shall have received counterparts of this AAA
Agreement which, when taken together, bear the signatures of all the
parties hereto.
(b) The Agent shall have received, on behalf of itself and the
Lenders, a favorable written opinion of counsel for the Borrower,
substantially to the effect set forth in Exhibit D of the Credit
Agreement (but referring to this AAA Agreement and the Credit Agreement
as amended hereby and to Xxxxxxxx as the Borrower thereunder), (i)
dated the date hereof, (ii) addressed to the Agent and the Lenders, and
(iii) covering such other matters relating to this AAA Agreement, the
Loan Documents and the Transactions as the Agent shall reasonably
request, and each of KCSI and Xxxxxxxx hereby instructs such counsel to
deliver such opinion.
(c) All legal matters incident to this AAA Agreement the
borrowings and extensions of credit hereunder and the other Loan
Documents shall be reasonably satisfactory to the Lenders and to
Cravath, Swaine & Xxxxx, counsel for the Agent.
(d) The Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments
thereto, of Xxxxxxxx, 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 Xxxxxxxx as of a recent date from such Secretary of State;
(ii) a certificate of the Secretary or an Assistant Secretary of
Xxxxxxxx dated the date hereof and certifying (A) that attached thereto
is a true and complete copy of the by-laws of Xxxxxxxx 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 Xxxxxxxx authorizing the execution, delivery and
performance of this Agreement and the Loan Documents and the borrowings
hereunder and thereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C)
that the certificate or articles of incorporation of Xxxxxxxx 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 Xxxxxxxx (iii) a certificate of
another officer as to the incumbency and specimen signature of the
Secretary or Assistant Secretary executing the certificate pursuant to
(ii) above; and (iv) such other documents as the Lenders or Cravath,
Swaine & Xxxxx, counsel for the Agent, may reasonably request.
(e) There shall be no litigation, actual or threatened, that
in the reasonable judgment of the Agent would (a) be likely to affect
materially and adversely the business, assets, condition (financial or
otherwise) or prospects of Xxxxxxxx or the ability of Xxxxxxxx to
perform its obligations under the Loan Documents or (b) be materially
inconsistent with the assumptions underlying the pro forma financial
information and projections previously delivered to the Agent and the
Lenders pursuant to Section 3.05(b).
(f) After giving effect to the Transfer Transaction and this
AAA Agreement, the representations and warranties set forth in the
Amended Credit Agreement shall be true and correct in all material
respects, no Default or Event of Default shall have occurred and be
continuing under either the Credit Agreement or the Amended Credit
Agreement and Xxxxxxxx and its subsidiaries shall be in compliance on a
pro forma basis with Section 6.07 of the Amended Credit Agreement.
(g) The Agent shall have received a certificate, dated the
date of this AAA Agreement and signed by a Financial Officer of KCSI,
with respect to the Credit Agreement, and Xxxxxxxx, with respect to the
Amended Credit Agreement, confirming compliance with the conditions
precedent set forth in paragraphs (b) and (c) of Section 4.01 of the
applicable agreement.
(h) The Agent shall have received all Fees and other amounts
due and payable on or prior to the date hereof, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by KCSI or Xxxxxxxx hereunder or
under any other Loan Document.
(i) On the date hereof (i) the Guarantee Agreement shall have
been duly executed and delivered to the Agent by the Guarantor and
shall be in full force and effect and (ii) Xxxxxxxx shall have executed
and delivered a promissory note in favor of any Lender that previously
had obtained a promissory note from KCSI pursuant to Section 2.07 of
the Credit Agreement and such promissory notes shall be in full force
and effect.
(j) The Transfer Transaction and the Assumption shall have
been completed in accordance with applicable law and on terms and with
results consistent with the pro forma financial information and
projections previously delivered to the Agent and the Lenders.
(k) Immediately after giving effect to the Assumption and the
Spin-Off, (i) Xxxxxxxx and its subsidiaries shall have outstanding no
indebtedness or preferred stock other than (v) Loans outstanding under
the Credit Agreement, (w) Loans outstanding under the 1999 Credit
Agreement, (x) other indebtedness in an aggregate amount outstanding at
any time no greater than $10,000,000 (or its equivalent in any other
currency), (y) preferred stock of subsidiaries of Xxxxxxxx owned by
Xxxxxxxx and (z) other indebtedness and preferred stock reasonably
satisfactory to the Lenders and (ii) Xxxxxxxx shall not nor shall any
of its subsidiaries, under the terms of any agreements entered into
with KCSI or any other Person, be responsible for any direct or
contingent liabilities other than (y) those historically associated
with the businesses and assets transferred to Xxxxxxxx in the Transfer
Transaction and (z) obligations under the Amended Credit Agreement and
under the 1999 Credit Agreement.
(l) All governmental and third party approvals required in
connection with the Transfer Transaction and this AAA Agreement and the
transactions contemplated hereby and thereby shall have been obtained
on terms reasonably satisfactory to the Agent, all applicable appeal
periods in connection with any such governmental approvals shall have
expired and there shall be no governmental or judicial action, actual
or threatened, that could reasonably be expected to restrain, prevent
or impose burdensome conditions on the Transfer Transaction or this AAA
Agreement or the transactions contemplated hereby or thereby.
(m) The Lenders shall have received a consolidated balance
sheet of Xxxxxxxx as of the last day of the fiscal quarter most
recently ended prior to the execution of this AAA Agreement, giving
effect to the Contribution Agreement as if it had occurred on such
date, which shall not be materially inconsistent with the pro forma
financial information and projections previously delivered to the Agent
and the Lenders.
SECTION 5. APPLICABLE LAW. THIS AAA AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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SECTION 6. Credit Agreement. Until the occurrence of the
Effective Date as provided in Section 4 hereof, the Credit Agreement shall
continue in full force and effect in accordance with the provisions thereof and
the rights and obligations of the parties thereto shall not be affected hereby,
and all Fees and interest accruing under the Credit Agreement shall continue to
accrue at the rates provided for therein.
SECTION 7. Amended Credit Agreement; Borrower. Any reference
in the Amended Credit Agreement, or in any documents or instruments required
thereunder or annexes or schedules thereto, referring to the Credit Agreement,
shall be deemed to refer to the Amended Credit Agreement. As used in the Amended
Credit Agreement, the terms "Agreement", "this Agreement", "herein",
"hereinafter", "hereto", "hereof" and words of similar import shall, unless the
context otherwise requires, mean the Amended Credit Agreement. Except as
expressly modified by this AAA Agreement, the terms and provisions of the Credit
Agreement are hereby confirmed and ratified in all respects and shall remain in
full force and effect as the terms and provisions of the Amended Credit
Agreement. Each reference in the Amended Credit Agreement to "the Borrower"
shall mean Xxxxxxxx Financial, Inc. and not Kansas City Southern Industries,
Inc.
SECTION 8. Counterparts. This AAA Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contracts. Delivery of an
executed counterpart of a signature page of this AAA Agreement by facsimile
transmission shall be as effective of a manually executed counterpart of this
AAA Agreement.
SECTION 9. Expenses. The Borrower agrees to reimburse the
Agent for their out-of-pocket expenses in connection with this AAA Agreement
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Xxxxx, counsel for the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this AAA
Agreement to be duly executed by their respective authorized officers as of the
day and year first written above.
KANSAS CITY SOUTHERN INDUSTRIES, INC.
by
/s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, General Counsel and
Secretary
XXXXXXXX FINANCIAL, INC.,
by
/s/ Xxxxxxx X. XxXxxxxx
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President & Treasurer
THE CHASE MANHATTAN BANK, individually, as
Swingline Lender and as Agent,
by
/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT A
to the Assignment, Assumption
and Amendment Agreement
[Form of]
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT (this "Agreement") dated as of
January 11, 2000, between XXXXXXXX FINANCIAL, INC., a Delaware
corporation (the "Borrower" or the "Guarantor"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, as
administrative agent (the "Agent") for the Lenders (as defined
in the Credit Agreement referred to below).
Reference is made to (a) the Credit Agreement dated as of January 11,
2000 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among KANSAS CITY SOUTHERN INDUSTRIES, INC. ("KCSI"), the
Lenders from time to time party thereto, The Chase Manhattan Bank, as swingline
lender and as administrative agent for the Lenders, Bank of America, N.A., as
Documentation Agent, and Fleet National Bank, as Syndication Agent, and (b) the
Assignment, Assumption and Amendment Agreement dated the date hereof among KCSI,
the Guarantor and the Agent (as amended, supplemented or otherwise modified from
time to time, the "AAA Agreement"). Capitalized terms used herein and not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement, as amended by the AAA Agreement (the "Amended Credit Agreement").
The Lenders have agreed to make Loans to the Borrower pursuant to, and
upon the terms and subject to the conditions specified in, the Amended Credit
Agreement.
Pursuant to Section 2.23 of the Amended Credit Agreement, the Borrower
may from time to time assign and delegate its rights and obligations in respect
of all or a portion of any Borrowing to one or more Subsidiary Borrowers that
will assume such obligations pursuant to an assignment that will result in the
Borrower being relieved of its obligations as a Borrower in respect of the
Borrowing or portion thereof so assigned (but not any obligations in respect of
such Borrowing that arise under other Loan Documents in the Borrower's capacity
as a Guarantor hereunder) and the applicable Subsidiary Borrower succeeding to
all such obligations.
It is a condition precedent to the effectiveness of the AAA Agreement
that the Guarantor shall have executed and delivered this Agreement to the Agent
for the ratable benefit of the Lenders.
In consideration of the premises and to induce the Agent, on behalf of
the Lenders, to enter into this Agreement and permit the assignment and
delegation of Borrowings to Subsidiary Borrowers, as provided in Section 2.23 of
the Amended Credit Agreement, the Guarantor hereby agrees with the Agent, for
the ratable benefit of the Lenders, as follows:
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. The Guarantor unconditionally guarantees, as a
primary obligor and not merely as a surety, (a) the due and punctual payment of
the Obligations and (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Loan Parties under or pursuant to
the Amended Credit Agreement and the other Loan Documents (all the monetary and
other obligations referred to in the preceding clauses (a) and (b) being
collectively called the "Guaranteed Obligations"). The Guarantor further agrees
that the Guaranteed Obligations may be extended, renewed or modified, in whole
or in part, without notice to or further assent from it, and that it will remain
bound upon its guarantee notwithstanding any extension, renewal or modification
of any Guaranteed Obligation.
SECTION 2. Guaranteed Obligations Not Waived. To the fullest extent
permitted by applicable law, the Guarantor waives presentment to, demand of
payment from and protest to any Subsidiary Borrower or the Guarantor of any of
the Guaranteed Obligations, and also waives notice of acceptance of its
guarantee and notice of protest for nonpayment. To the fullest extent permitted
by applicable law, the obligations of the Guarantor hereunder shall not be
affected by (a) the failure of the Agent or any Lender to assert any claim or
demand or to enforce or exercise any right or remedy against any Subsidiary
Borrower or the Guarantor, under the provisions of the Amended Credit Agreement,
any other Loan Document or otherwise or (b) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of this
Agreement, any other Loan Document, any Guarantee or any other agreement.
SECTION 3. Guarantee of Payment. The Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Agent or any Lender to
any balance of any deposit account or credit on the books of the Agent or any
Lender in favor of any Subsidiary Borrower or any other person.
SECTION 4. No Discharge or Diminishment of Guarantee. The obligations
of the Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Guaranteed Obligations), including any claim of waiver,
release, surrender, alteration or compromise of any of the Guaranteed
Obligations, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of the Guarantor hereunder
shall not be discharged or impaired or otherwise affected by the failure of the
Agent or any Lender to assert any claim or demand or to enforce any remedy under
the Amended Credit Agreement, any other Loan Document or any other agreement, by
any waiver or modification of any provision of any thereof, by any default,
failure or delay, wilful or otherwise, in the performance of the Guaranteed
Obligations, or by any other act or omission that may or might in any manner or
to any extent vary the risk of the Guarantor or that would otherwise operate as
a discharge of the Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Guaranteed Obligations).
SECTION 5. Defenses of Subsidiary Borrower Waived. To the fullest
extent permitted by applicable law, the Guarantor waives any defense based on or
arising out of any defense of any Subsidiary Borrower or the unenforceability of
the Guaranteed Obligations or any part thereof from any cause, or the cessation
from any cause of the liability of any Subsidiary Borrower, other than the final
and indefeasible payment in full in cash of the Guaranteed Obligations. The
Agent and any Lender may, at their election, compromise or adjust any part of
the Guaranteed Obligations, make any other accommodation with any Subsidiary
Borrower or exercise any other right or remedy available to them against any
Subsidiary Borrower, without affecting or impairing in any way the liability of
the Guarantor hereunder except to the extent the Guaranteed Obligations have
been fully, finally and indefeasibly paid in cash. Pursuant to applicable law,
the Guarantor waives any defense arising out of any such election even though
such election operates, pursuant to applicable law, to impair or to extinguish
any right of reimbursement or subrogation or other right or remedy of the
Guarantor against any Subsidiary Borrower.
SECTION 6. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Agent or any Lender
has at law or in equity against any Guarantor by virtue hereof, upon the failure
of any Subsidiary Borrower to pay any Guaranteed Obligation when and as the same
shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, the Guarantor hereby promises to and will forthwith
pay, or cause to be paid, to the Agent or such Lender as designated thereby in
cash the amount of such unpaid Guaranteed Obligations. Upon payment by the
Guarantor of any sums to the Agent or any Lender as provided above, all rights
of the Guarantor against any Subsidiary Borrower arising as a result thereof by
way of right of subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full in cash of all the Guaranteed Obligations. In
addition, any indebtedness of any Subsidiary Borrower now or hereafter held by
the Guarantor is hereby subordinated in right of payment to the prior payment in
full of the Guaranteed Obligations. If any amount shall erroneously be paid to
the Guarantor on account of (i) such subrogation, contribution, reimbursement,
indemnity or similar right or (ii) any such indebtedness of any Subsidiary
Borrower, such amount shall be held in trust for the benefit of the Lenders and
shall forthwith be paid to the Agent to be credited against the payment of the
Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms of the Loan Documents.
SECTION 7. Information. The Guarantor assumes all responsibility for
being and keeping itself informed of each of the Subsidiary Borrower's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks that the Guarantor assumes and incurs hereunder, and agrees that none of
the Agent or the Lenders will have any duty to advise the Guarantor of
information known to it or any of them regarding such circumstances or risks.
SECTION 8. Representations and Warranties. The Guarantor represents and
warrants that all representations and warranties contained in the Amended Credit
Agreement are true and correct with the same effect as if made on and as of the
date hereof, except to the extent that such representations and warranties
expressly relate to an earlier date.
SECTION 9. Termination. The Guarantees made hereunder (a) shall
terminate when all the Guaranteed Obligations have been indefeasibly paid in
full and the Lenders have no further commitments to lend under the Amended
Credit Agreement and (b) shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part thereof, of any Guaranteed
Obligation is rescinded or must otherwise be restored by any Lender or the
Guarantor upon the bankruptcy or reorganization of any Subsidiary Borrower, the
Guarantor or otherwise.
SECTION 10. Binding Effect; Assignments. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of the Guarantor that are contained in this Agreement
shall bind and inure to the benefit of each party hereto and their respective
successors and assigns. This Agreement shall become effective when a counterpart
hereof executed on behalf of the Guarantor shall have been delivered to the
Agent, and a counterpart hereof shall have been executed on behalf of the Agent,
and thereafter shall be binding upon the Guarantor and the Agent and their
respective successors and assigns, and shall inure to the benefit of the
Guarantor, the Agent and the Lenders, and their respective successors and
assigns, except that the Guarantor shall not have the right to assign its rights
or obligations hereunder or any interest herein (and any such attempted
assignment shall be void).
SECTION 11. Waivers; Amendment. (a) No failure or delay of the Agent in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agent and the Lenders hereunder
and under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by the Guarantor therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on the
Guarantor in any case shall entitle the Guarantor to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Guarantor with respect to which such waiver, amendment or modification
relates and the Agent, with the prior written consent of the Required Lenders
(except as otherwise provided in the Amended Credit Agreement).
SECTION 12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
---------------
SECTION 13. Notices. Except as set forth in the sentence immediately
following, all communications and notices hereunder shall be in writing and
given as provided in Section 9.01 of the Amended Credit Agreement.
SECTION 14. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Guarantor herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Agent and the Lenders and shall survive the making
by the Lenders of the Loans regardless of any investigation made by the Agent,
the Lenders or on their behalf, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any other fee or
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid or the Revolving Credit Exposure does not equal zero and as long as
the Commitments have not been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 15. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract, and shall become effective as
provided in Section 10. Delivery of an executed signature page to this Agreement
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 16. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Amended Credit Agreement shall be applicable to
this Agreement.
SECTION 17. Jurisdiction; Consent to Service of Process. (a) The
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or the other Loan Documents against the Guarantor or its
properties in the courts of any jurisdiction.
(b) The Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 13. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 18. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 18.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXXXXX FINANCIAL, INC.,
by
---------------------------
Name:
Title:
18
THE CHASE MANHATTAN BANK, as Agent,
by
----------------------------
Name:
Title:
XXXXXXXX FINANCIAL, INC.
SCHEDULE 3.08 TO
AMENDED AND RESTATED 364-DAY COMPETITIVE
ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
SUBSIDIARIES AND JOINT VENTURES
Financial Asset Percentage of State or Other Jurisdiction of
Management Subsidiaries Ownership Incorporation or Organization
Xxxxxx LLC (1) 80 Delaware
Xxxxxx Distributors, Inc. (2) 100 Delaware
DST Systems, Inc. (1) 32 Delaware
Fillmore Agency, Inc. (3) 100 Colorado
Fountain Investments, Inc. (3) 100 Missouri
Fountain Investments UK (3) 000 Xxxxxx Xxxxxxx
Janus Capital Corporation (3) 82 Colorado
Janus Capital International Ltd. (4) 100 Colorado
Janus Distributors, Inc. (4) 100 Colorado
Janus Service Corp. (4) 100 Colorado
Xxxxxx Xxxxxx Limited (5) 100 United Kingdom
Xxxxxx Investment Planning Limited (5) 100 United Kingdom
Xxxxxx Investment Management Limited (5) 100 United Kingdom
Xxxxxx Money Managers plc (6) 00 Xxxxxx Xxxxxxx
PVI, Inc. (3) 100 Delaware
FAM UK Limited (3) 000 Xxxxxx Xxxxxxx
Xxxxxxxx Management, Inc. (3) 100 Delaware
Taproot Limited (5) 000 Xxxxxx Xxxxxxx
Notes to Schedule 3.08:
(1) Subsidiary of Stilwel Management, Inc.
(2) Subsidiary of Xxxxxx LLC
(3) Subsidiary of Xxxxxxxx Financial, Inc.
(4) Subsidiary of Janus Capital Corporation
(5) Subsidiary of Xxxxxx Money Managers plc
(6) Subsidiary of FAM UK Limited
XXXXXXXX FINANCIAL, INC.
SCHEDULE 3.09 TO
AMENDED AND RESTATED 364-DAY COMPETITIVE
ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
LITIGATION: CONTINGENT OBLIGATIONS
None
XXXXXXXX FINANCIAL, INC.
SCHEDULE 3.17 TO
AMENDED AN D RESTATED 364-DAY COMPETITIVE
ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
DIVIDEND RESTRICTIONS
None
- 2 -
XXXXXXXX FINANCIAL, INC.
SCHEDULES 6.01 and 6.02 TO
AMENDED AND RESTATED 364-DAY COMPETITIVE
ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
INDEBTEDNESS SECURED BY LIENS
None
