EXHIBIT 10.1
AMENDMENT NO. 1 AND CONSENT XX. 0
XXXXXXXXX XX. 0 AND CONSENT NO. 2 (this "Amendment and Consent"), dated as
of July 27, 2005, under the Credit Agreement, dated as of March 31, 2004, among
THE BISYS GROUP, INC., the Lenders party thereto, BANK OF AMERICA, N.A.,
successor by merger to Fleet National Bank, JPMORGAN CHASE BANK, SUNTRUST BANK
and WACHOVIA BANK, NATIONAL ASSOCIATION, as Documentation Agents, and THE BANK
OF NEW YORK, as Administrative Agent (the "Credit Agreement").
RECITALS
A. Capitalized terms used herein which are not defined herein shall have
the respective meanings ascribed thereto in the Credit Agreement.
B. The Borrower failed to deliver its 10-Q for the fiscal quarter ended
March 31, 0000 (xxx "Xxxxx Xxxxxxx 00-X") to the Administrative Agent by May 16,
2005, the date required by Section 6.1(b) of the Credit Agreement (the "Required
Delivery Date"). As a result of such failure, a Default has occurred and is
continuing (the "10-Q Default"). In addition, the Borrower failed to deliver the
Compliance Certificate for the fiscal quarter ended March 31, 2005 (the "Third
Quarter Compliance Certificate") to the Administrative Agent by the Required
Delivery Date as required by Section 6.1(b) of the Credit Agreement"). As a
result of such failure, a Default has occurred and is continuing (the
"Compliance Certificate Default" and, together with the 10-Q Default, the
"Defaults"). But for the Consent and Waiver (as hereinafter defined), in
accordance with Section 8.1(e) of the Credit Agreement, the Defaults would have
become Events of Default if the Third Quarter 10-Q and the Third Quarter
Compliance Certificate were not delivered on or before June 15, 2005, the last
day of the 30 day cure period set forth therein (the "Cure Period Expiration
Date").
C. Pursuant to Consent No. 1 and Waiver No. 2, dated as of June 10, 2005
(the "Consent and Waiver"), the Administrative Agent and the Lenders, among
other things, (i) extended the Cure Period Expiration Date from June 15, 2005
through and including August 1, 2005, and (ii) effective as of June 20, 2005
(the All Lender Effective Date as defined in the Consent and Waiver) consented
to the setting of the Applicable Margin until the earlier to occur of (x) the
delivery of the Third Quarter Compliance Certificate and (y) August 1, 2005
based on the Total Leverage Ratio as set forth in the Compliance Certificate
delivered with respect to the fiscal quarter of the Borrower ended December 31,
2004 (the "December 2004 Applicable Margin").
D. The Borrower does not expect to be in a position to deliver the Third
Quarter 10-Q or the Third Quarter Compliance Certificate on or before August 1,
2005 and has requested that the Administrative Agent and the Lenders (i) consent
to the extension of the Cure Period Expiration Date in respect of the Defaults
through and including September 13, 2005, and (ii) make certain amendments to
the Credit Agreement, and the Administrative Agent and the Lenders are willing
to do so subject to the terms and conditions of this Amendment and Consent.
Accordingly, in consideration of the Recitals and the covenants,
conditions and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. The Administrative Agent and the Lenders hereby consent to the
extension of the Cure Period Expiration Date in respect of the Defaults through
and including September 13, 2005.
2. The definition of "Maturity Date" set forth in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Maturity Date" means (i) if the Subordinated Notes have not
been refinanced in full on or before December 14, 2005, December 14,
2005, and (ii) if the Subordinated Notes have been refinanced in
full on or before December 14, 2005, March 31, 2008.
3. Section 6.8(a) of the Credit Agreement is amended by adding the
following sentence to the end thereof:
Notwithstanding anything in any Loan Document to the contrary,
the proceeds of the Loans may not be used to purchase, repay,
prepay, redeem, acquire, defease or otherwise retire all or any
portion of the Subordinated Notes or any Subordinated Refinancing
Notes.
4. Section 7.8 of the Credit Agreement is amended by (i) deleting the word
"and" at the end of subsection (b) thereof, (ii) substituting "; and" for the
period at the end of subsection (c) thereof and (iii) adding a new subsection
(d) to the end thereof to read as follows:
(d) the Borrower may (i) make regularly scheduled payments of
interest on the Subordinated Notes or any Subordinated Refinancing
Notes, in each case to the extent permitted by the subordination
terms applicable thereto, and (ii) refinance the Subordinated Notes
with Subordinated Refinancing Notes to the extent permitted by
Section 7.1(a)(xvi).
5. Section 7.12(d) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
(d) Consolidated Net Worth. The Borrower will not permit
Consolidated Net Worth as of the last day of each fiscal quarter to
be less than the sum, without duplication, of (i) $685,000,000 plus
(ii) 60% of Consolidated Net Income (if positive) for each fiscal
quarter commencing after March 31, 2005 to the date of such
determination, plus (iii) with respect to any issuance of by the
Borrower of Equity Interests (other than treasury stock) after
August 1, 2005, (A) in the case of any such issuance in connection
with an acquisition, 85% of the total increase in its stockholder's
equity as a result of such acquisition and (B) in all other cases,
85% of the total net proceeds received by it from such issuance.
6. Paragraphs 1, 3, 4 and 5 hereof shall not be effective until each of
the following conditions is satisfied:
(a) the Administrative Agent (or its counsel) shall have
received from Required Lenders and each of the Loan Parties either
(i) a counterpart of this Amendment and Consent signed on behalf of
such Person or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a
signed signature page of this Amendment and Consent) that such
Person has signed a counterpart of this Amendment and Consent;
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(b) the Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Amendment Effective
Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses required to be reimbursed or paid by the
Borrower under the Loan Documents; and
(c) the Administrative Agent shall have received such other
documentation and assurances as it shall reasonably request in
connection with this Amendment and Consent and the transactions
contemplated hereby.
7. Paragraph 2 hereof shall not be effective until each of the following
conditions is satisfied:
(a) the Administrative Agent (or its counsel) shall have
received from each of the Loan Parties and the Lenders either (i) a
counterpart of this Amendment and Consent signed on behalf of such
Person or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature
page of this Amendment and Consent) that such Person has signed a
counterpart of this Amendment and Consent;
(b) the Administrative Agent shall have received for the
account of each Lender that shall have executed and delivered this
Amendment an amendment fee equal to 0.10% of the sum of such
Lender's Revolving Commitment and the outstanding principal balance
of such Lender's Term Loans on the date hereof; and
(c) each of the conditions set forth in subsections (b) and
(c) of paragraph 4 hereof shall have been satisfied.
8. The Borrower acknowledges and agrees that by virtue of its failure to
deliver the Third Quarter 10-Q and the Third Quarter Compliance Certificate on
or before August 1, 2005, for purposes of calculating the Applicable Margin, the
Total Leverage Ratio shall be deemed to be 3.00:1.00 from and including August
2, 2005 to the date of delivery to the Administrative Agent the Third Quarter
10-Q and the Third Quarter Compliance Certificate, provided, however,
notwithstanding anything contained herein or in the Consent and Waiver to the
contrary, if Applicable Margin based on the Total Leverage Ratio set forth in
the Third Quarter Compliance Certificate (the "Third Quarter Applicable Margin")
is higher than the December 2004 Applicable Margin, the Borrower agrees to pay
to the Administrative Agent for the account of each Lender, not later than five
(5) Business Days after the delivery of the Third Quarter Compliance
Certificate, the difference between interest calculated using the December 2004
Applicable Margin and interest calculated using the Third Quarter Applicable
Margin, in each case on the Loans of such Lender outstanding from time to time
during the period from June 20, 2005 through and including August 1, 2005.
9. In all other respects, the Loan Documents shall remain in full force
and effect, and no consent or waiver in respect of any term or condition of any
Loan Document shall be deemed to be a consent or waiver in respect of any other
term or condition contained in any Loan Document.
10. The Borrower acknowledges that so long as the Defaults shall continue
or any other Default shall occur and be continuing, the Borrower shall not be
entitled to request Loans or the issuance, increase, amendment, renewal or
extension of Letters of Credit under the Credit Agreement ("Credit Extensions").
The Lenders' consent to any Credit Extension requested by the Borrower shall not
be construed as a waiver of the Lenders' right to not consent to any other
Credit Extensions during the
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continuance of any Default (including the Defaults) or a waiver of any other
rights or remedies of the Credit Parties under the Loan Documents, all of which
are expressly reserved.
11. Each Loan Party hereby (i) reaffirms and admits the validity and
enforceability of each Loan Document and the respective obligations of the Loan
Parties thereunder, and agrees and admits that no Loan Party has any defense to
or offset against any such obligation, and (ii) represents and warrants that
except for the Defaults, no Default has occurred and is continuing and that all
of the respective representations and warranties of the Loan Parties contained
in the Loan Documents are true and correct.
12. By signing below, each Subsidiary Guarantor consents to this Amendment
and Consent.
13. This Amendment and Consent may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute one agreement. It shall not be necessary in making proof of this
Amendment and Consent to produce or account for more than one counterpart signed
by the party to be charged.
14. THIS AMENDMENT AND CONSENT IS BEING DELIVERED IN AND IS INTENDED TO BE
PERFORMED IN THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCEABLE IN
ACCORDANCE WITH, AND BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
[Remainder of page intentionally left blank.]
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THE BISYS GROUP, INC.
AMENDMENT NO. 1 AND CONSENT NO. 2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
and Consent No. 2 to the Credit Agreement to be duly executed and delivered by
their proper and duly authorized officers as of the day and year first above
written.
THE BISYS GROUP, INC.
By: /s/ Xxxxx X. Xxx
------------------
Name: Xxxxx X. Xxx
Title: CFO
CONSENTED TO AND AGREED:
ASCENSUS INSURANCE SERVICES, INC.
BISYS COMMERCIAL INSURANCE SERVICES, INC.
BISYS FINANCING COMPANY
BISYS FUND SERVICES OHIO, INC.
BISYS INSURANCE SERVICE HOLDING CORP.
BISYS INSURANCE SERVICES, INC.
BISYS MANAGEMENT COMPANY
BISYS PRIVATE EQUITY SERVICES, INC.
BISYS RETIREMENT SERVICES, INC.
UNIVERSAL PENSIONS, INC.
AS TO EACH OF THE FOREGOING
By: /s/ Xxxxx X. Xxx
----------------
Name: Xxxxx X. Xxx
Title: Executive Vice President
BISYS INFORMATION SOLUTIONS, L.P.
By: BISYS INFORMATION SOLUTIONS HOLDINGS I, INC.,
its General Partner
By: /s/ Xxxxx X. Xxx
----------------
Name: Xxxxx X. Xxx
Title: Executive Vice President
BISYS DOCUMENT SOLUTIONS, LLC
By: BISYS INFORMATION SOLUTIONS, L.P., its Sole Member
By: BISYS INFORMATION SOLUTIONS HOLDINGS I, INC., its General Partner
By: /s/ Xxxxx X. Xxx
----------------
Name: Xxxxx X. Xxx
Title: Executive Vice President
THE BISYS GROUP, INC.
AMENDMENT NO. 1 AND CONSENT NO. 2
THE BANK OF NEW YORK,individually, as
Issuing Bank, as Swingline Lender and
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
CONSENTED TO AND AGREED:
BANK OF AMERICA, N.A., successor by
merger to Fleet National Bank,
individually and as Documentation Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Credit Products Officer
CONSENTED TO AND AGREED:
JPMORGAN CHASE BANK, individually and
as Documentation Agent
By: /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
CONSENTED TO AND AGREED:
SUNTRUST BANK, individually and
as Documentation Agent
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
CONSENTED TO AND AGREED:
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as Documentation Agent
By: /s/ G. Xxx Xxxxxx, Xx.
---------------------------------------
Name: G. Xxx Xxxxxx, Xx.
Title: Vice President
THE BISYS GROUP, INC.
AMENDMENT NO. 1 AND CONSENT NO. 2
CONSENTED TO AND AGREED:
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxxxxx
-------------------
Name: Xxxx Xxxxxxxxxx
Title: Senior Vice President
CONSENTED TO AND AGREED:
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President
CONSENTED TO AND AGREED:
THE BANK OF NOVA SCOTIA
By: /s/ Xxxx Xxxxxx
---------------
Name: Xxxx Xxxxxx
Title: Managing Director
CONSENTED TO AND AGREED:
SCOTIABANC INC.
By: /s/ Xxxxxx Xxxx
---------------
Name: Xxxxxx Xxxx
Title: Senior Manager
CONSENTED TO AND AGREED:
US BANK, N.A.
By: /s/ M. Xxxxx Xxxxxxxxx
----------------------
Name: M. Xxxxx Xxxxxxxxx
Title: Vice President
THE BISYS GROUP, INC.
AMENDMENT NO. 1 AND CONSENT NO. 2
CONSENTED TO AND AGREED:
ALLIED IRISH BANKS, PLC
By: /s/ Xxxxxxx X'Xxxxxx
--------------------
Name: Xxxxxxx X'Xxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: Vice President
CONSENTED TO AND AGREED:
AIB DEBT MANAGEMENT LTD.
By: /s/ Xxxxxxx X'Xxxxxx
--------------------
Name: Xxxxxxx X'Xxxxxx
Title: Vice President
Investment Advisor to
AIB Debt Management, Limited
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Investment Advisor to
AIB Debt Management, Limited
CONSENTED TO AND AGREED:
FIFTH THIRD BANK (CENTRAL OHIO)
By: /s/ Xxxxxxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
CONSENTED TO AND AGREED:
UFJ BANK LIMITED
By: /s/ Xxxxxxx X. Small
--------------------
Name: Xxxxxxx X. Small
Title: Senior Vice President & Area Manager
THE BISYS GROUP, INC.
AMENDMENT NO. 1 AND CONSENT NO. 2
CONSENTED TO AND AGREED:
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Xxxxx X. Xxxx
-----------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
CONSENTED TO AND AGREED:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. XxXxxxxx
--------------------
Name: Xxxx X. XxXxxxxx
Title: Senior Vice President
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
