Exhibit 10.1
EXECUTION COPY
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") dated as of
February , 2006 to the Credit Agreement referenced below is by and among DST
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Systems, Inc., a Delaware corporation (the "Borrower"), the Lenders identified
on the signature pages hereto and Bank of America, N.A. as Administrative Agent,
L/C Issuer and Swing Line Lender (the "ADMINISTRATIVE AGENT").
W I T N E S S E T H
WHEREAS, $600 million in credit facilities have been established in favor
of the Borrower pursuant to the terms of that Credit Agreement dated as of June
28, 2005 (as modified by that certain Consent dated as of December 22, 2005 and
as may be further amended, restated, modified or supplemented from time to time,
the "CREDIT AGREEMENT") among the Borrower, the Lenders identified therein (the
"LENDERS") and the Administrative Agent;
WHEREAS, the Borrower has requested that the Lenders amend the Credit
Agreement to modify certain provisions contained therein; and
WHEREAS, the Required Lenders have agreed to amend the Credit Agreement on
the terms and subject to the conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein but not otherwise defined
herein shall have the meanings provided to such terms in the Credit Agreement.
2. Amendments. Subject to the satisfaction of the conditions precedent set
forth in Section 3 hereof, the Credit Agreement is amended in the following
respects:
(a) Section 1.01 of the Credit Agreement is amended by adding the following
definitions in the appropriate alphabetical order:
"Back-Stopped Bridge Facility" means any bridge or other similar
short-term financing which, expressly by its terms, automatically extends
or rolls over into a long-term financing on the initial stated maturity
date thereof to the extent such financing has not otherwise been repaid or
refinanced on or prior to such date.
"Increase Effective Date" has the meaning specified in Section 2.14.
"Refinancing Indebtedness" has the meaning specified in Section 8.16.
(b) A new Section 2.14 is hereby added to the Credit Agreement immediately
following Section 2.13 thereof and shall read as follows:
2.14 INCREASE IN AGGREGATE REVOLVING COMMITMENTS.
(a) REQUEST FOR INCREASE. Provided there exists no Default or Event of
Default, upon notice to the Administrative Agent, the Borrower may from
time to time, request an increase in the Aggregate Revolving Commitments by
an amount (for all such requests) not exceeding an additional $600,000,000;
provided that (i) any such request for an increase shall be in a minimum
amount of $25,000,000 and (ii) the Borrower may make a maximum of five (5)
such requests. To achieve the full amount of a requested increase and
subject to the approval of the Administrative Agent and the L/C Issuer
(which approvals shall not be unreasonably withheld), the Borrower may
solicit commitments to the increase from existing Lenders and/or additional
Eligible Assignees to become Lenders pursuant to a joinder agreement in
form and substance satisfactory to the Administrative Agent and its
counsel. If the Aggregate Revolving Commitments are increased in accordance
with this Section, the Administrative Agent and the Borrower shall
determine the effective date (the "Increase Effective Date") and the final
allocation of such increase. The Administrative Agent shall promptly notify
the Borrower and each of the Lenders of the aggregate amount of such
increase and the Increase Effective Date.
(b) CONDITIONS TO EFFECTIVENESS OF INCREASE. As a condition precedent
to such increase, (i) the Borrower shall deliver to the Administrative
Agent a certificate of the Borrower dated as of the Increase Effective Date
(in sufficient copies for each Lender) signed by a Responsible Officer of
the Borrower (A) certifying and attaching the resolutions adopted by the
Borrower approving or consenting to such increase, and (B) certifying that,
before and after giving effect to such increase, (I) the representations
and warranties contained in ARTICLE VI and the other Loan Documents are
true and correct on and as of the Increase Effective Date, except to the
extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier
date, and except that for purposes of this SECTION 2.14, the
representations and warranties contained in subsections (a) and (b) of
SECTION 6.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of SECTION 7.01,
and (II) no Default exists, (ii) the Borrower shall pay all applicable fees
owing by the Borrower in connection with the increase (including any
upfront, administrative or arrangement fees agreed to by the Borrower) and
(iii) the Administrative Agent shall have received (A) executed joinder
agreements from each new Lender in form and substance satisfactory to the
Administrative Agent and its counsel and (B) a Note duly executed by the
Borrower in favor of each new Lender requesting a Note. The Borrower shall
prepay any Committed Loans outstanding on the Increase Effective Date (and
pay any additional amounts required pursuant to SECTION 3.05) to the extent
necessary to keep the outstanding Committed Loans ratable with any
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revised Pro Rata Share arising from any nonratable increase in the
Commitments under this Section; PROVIDED that the out-of pocket amount to
be paid by the Borrower in connection with any such prepayment arising out
of such a reallocation of the outstanding Committed Loans shall be limited
to the additional amounts required pursuant to SECTION 3.05.
(c) CONFLICTING PROVISIONS. This Section shall supersede any
provisions in Sections 2.13 or 11.01 to the contrary.
(c) Section 8.06 is amended by deleting the word "and" at the end of clause
(f) thereof, renumbering existing clause (g) thereof to clause (h) and adding a
new clause (g) to read as follows:
(g) the Borrower may make payments payable in the Capital Stock of the
Borrower to repay, redeem or otherwise satisfy all or any portion of the
Convertible Senior Debentures, including the principal amount thereof,
interest thereon and/or any conversion premium (i.e. the portion of the
payment in excess of the principal and interest amount that is payable upon
conversion thereof), whether such payments are made upon conversion of any
or all of the Convertible Senior Debentures or in connection with any
voluntary, optional, mandatory or scheduled payment, prepayment,
redemption, defeasance or other satisfaction thereof in the amounts
required under the terms thereof.
(d) Section 8.12 is hereby deleted in its entirety and replaced with the
following:
8.12 Prepayment of Other Indebtedness, Etc.
Permit any Consolidated Party:
(x) to make (or give any notice with respect thereto) any voluntary or
optional payment or prepayment of any Subordinated Indebtedness, or make
(or give any notice with respect thereto) any other repayment, redemption
or acquisition for value or defeasance (including without limitation, by
way of depositing money or securities with the trustee with respect thereto
before due for the purpose of paying when due), refund, refinance or
exchange with respect thereto, and
(y) if any Default has occurred and is continuing or would be directly
or indirectly caused as a result thereof, after the issuance thereof, to
(a) amend or modify any of the terms of any Indebtedness of such Person
(other than Indebtedness arising under the Loan Documents but including the
Convertible Senior Debentures and any Refinancing Indebtedness) if such
amendment or modification would add or change any terms in a manner adverse
in any material respect to such Person or to the Lenders, or (b) shorten
the final maturity or average life to maturity thereof or require any
payment thereon to be made sooner than originally scheduled or increase the
interest rate applicable thereto, or (c) except as otherwise permitted
under Section 8.06(g) with respect to the Convertible Senior Debentures,
make (or give any notice with respect thereto) any voluntary or optional
payment or prepayment thereof, or make (or give any notice with respect
thereto) any other
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repayment, redemption or acquisition for value or defeasance (including
without limitation, by way of depositing money or securities with the
trustee with respect thereto before due for the purpose of paying when
due), refund, refinance or exchange with respect thereto.
(e) A new Section 8.16 is hereby added to the Credit Agreement immediately
following Section 8.15 thereof and shall read as follows:
Section 8.16 REPAYMENT OF CONVERTIBLE SENIOR DEBENTURES.
Except as otherwise permitted by Section 8.06(g), permit any of the
Consolidated Parties to make (or give any notice with respect thereto) any
tender offer for any or all of the Convertible Senior Debentures and any
Refinancing Indebtedness with respect thereto, or make (or give any notice
with respect thereto) any repayment (whether voluntary, optional,
mandatory, scheduled or otherwise), redemption or acquisition for value or
defeasance (including without limitation, by way of depositing money or
securities with the trustee with respect thereto before due for the purpose
of paying when due), refund, refinance or exchange with respect thereto,
except, so long as no Default exists or would otherwise result therefrom:
(a) the Borrower may make a tender offer for the principal portion and
accrued interest of any or all of the Series A Debentures or repay,
redeem, acquire for value or defeasance (including without limitation,
by way of depositing money or securities with the trustee with respect
thereto before due for the purpose of paying when due), refund,
refinance or exchange the principal portion and accrued interest of
any or all of the Series A Debentures; provided that, in the event the
related payment is financed by the Borrower using the proceeds of
additional Indebtedness (other than Indebtedness under this Agreement)
(the "Refinancing Indebtedness"), such Refinancing Indebtedness shall
not (i) have a maturity date (which, for the purposes hereof in the
case of any Back-Stopped Bridge Facility, shall be the maturity date
of any rollover or other extension financing specified with respect
thereto) that occurs on or before the date that is six months after
the Maturity Date, (ii) require any payment thereon to be made sooner
than originally scheduled under the Series A Debentures or (iii) have
terms that are more adverse in any material respect to the Borrower or
to the Lenders than this Agreement; and
(b) the Borrower may make a tender offer for the principal portion and
accrued interest of any or all of the Series B Debentures or repay,
prepay, redeem, acquire for value or defeasance (including without
limitation, by way of depositing money or securities with the trustee
with respect thereto before due for the purpose of paying when due),
refund, refinance or exchange the principal portion and accrued
interest of any or all of the Series B Debentures.
3. CONDITIONS PRECEDENT. This Amendment shall become effective upon receipt
by the Administrative Agent of counterparts of this Amendment duly executed by
the Borrower, the Administrative Agent and the Required Lenders.
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4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants that (a) it has the requisite corporate power and authority to execute,
deliver and perform this Amendment, (b) it is duly authorized to, and has been
authorized by all necessary corporate action to, execute, deliver and perform
this Amendment, (c) no consent, approval, authorization or order of, or filing,
registration or qualification with, any court or governmental authority or third
party is required in connection with the execution, delivery or performance by
it of this Amendment, (d) the execution, delivery and performance by it of this
Amendment do not and will not conflict with, result in a breach of or constitute
a default under the articles of incorporation, bylaws or other organizational
documents of the Borrower or any of its Subsidiaries or any indenture or other
material agreement or instrument to which any such Person is a party or by which
any of its properties may be bound or the approval of any Governmental Authority
relating to such Person except as could not reasonably be expected to have a
Material Adverse Effect, (e) the representations and warranties contained in
Article VI of the Credit Agreement are true and correct in all material respects
on and as of the date hereof as though made on and as of such date (except for
those which expressly relate to an earlier date) and (f) no Default or Event of
Default exists under the Credit Agreement on and as of the date hereof and after
giving effect to this Amendment, or will occur as a result of the transactions
contemplated hereby.
5. NO OTHER CHANGES; RATIFICATION. Except as expressly modified hereby, all
of the terms and provisions of the Credit Agreement (including schedules and
exhibits thereto) and the other Loan Documents shall remain in full force and
effect. The term "this Agreement" or "Credit Agreement" and all similar
references as used in each of the Loan Documents shall hereafter mean the Credit
Agreement as amended by this Amendment. Except as herein specifically agreed,
the Credit Agreement is hereby ratified and confirmed and shall remain in full
force and effect according to its terms.
6. COSTS AND EXPENSES. The Borrower agrees to pay all reasonable costs and
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment, including without limitation, the
reasonable fees and expenses of Xxxxx & Xxx Xxxxx, PLLC.
7. COUNTERPARTS; FACSIMILE/EMAIL. This Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original and it shall not be necessary in making proof of this
Amendment to produce or account for more than one such counterpart. Delivery of
an executed counterpart of this Amendment by telecopy or electronic mail by any
party hereto shall be effective as such party's original executed counterpart.
8. GOVERNING LAW. This Amendment shall be deemed to be a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York.
9. ENTIRETY. This Amendment and the other Loan Documents embody the entire
agreement between the parties and supersede all prior agreements and
understandings, if any, relating to the subject matter hereof. These Loan
Documents represent the final agreement
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between the parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no oral
agreements between the parties.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
BORROWER: DST SYSTEMS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title:Vice President, CFO and Treasurer
[signature pages continue]
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ADMINISTRATIVE AGENT
AND LENDERS: BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxx
Title: Vice President
BANK OF AMERICA, N.A.,
as a Lender, L/C Issuer and Swing Line
Lender
By: /s/ W. Xxxxxx Xxxxxxx
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Name: W. Xxxxxx Xxxxxxx
Title: Senior Vice President
