EXHIBIT 10.1
EXECUTION COPY
SECOND AMENDMENT AND WAIVER
SECOND AMENDMENT AND WAIVER, dated as of May 15, 2000 (the "Second
Amendment"), to the Credit Agreement, dated as of July 22, 1999 (as amended,
supplemented or otherwise modified, the "Credit Agreement"), among BANCTEC,
INC., a Delaware corporation (the "Borrower"), the several banks and other
financial institutions or entities from time to time parties thereto (the
"Lenders"), ABN AMRO Bank N.V., as Co-Agent, CHASE BANK OF TEXAS, N.A.
("CHASE"), as syndication agent (in such capacity, the "Syndication Agent"), and
CHASE BANK OF TEXAS, N.A., as administrative agent (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders, the Administrative Agent and the
Syndication Agent are parties to the Credit Agreement;
WHEREAS, the Borrower has requested (i) temporary waiver of certain
provisions of the Credit Agreement and (ii) certain amendments to the Credit
Agreement as set forth herein; and
WHEREAS, the Required Lenders have consented to the requested waivers
and amendments as set forth herein;
NOW THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Definitions. Terms defined in the Credit Agreement are used
herein with the respective meanings given to them therein.
2. Amendments to Section 2 of the Credit Agreement. (a) Subsection
2.9(b)(iii) of the Credit Agreement is hereby amended by deleting the phrase
"prepayment of the Revolving Loans then outstanding" beginning in the third line
thereof, and inserting in lieu of such phrase the following:
"reduction of the Revolving Commitments"
(b) Subsection 2.9(d) of the Credit Agreement is hereby amended by
deleting the parenthetical beginning in the third line thereof.
(c) Section 2 of the Credit Agreement is hereby amended by inserting
the following subsection at the end of such Section:
"2.21. Limitation on Revolving Extensions of Credit.
Notwithstanding anything in this Agreement to the contrary, the Total
Revolving Extensions of Credit shall not exceed the Total Revolving
Extensions of Credit outstanding as of the Second Amendment Effective
Date (such amount, the "Permitted Total Revolving Extensions of
Credit"); provided, that the Permitted Total Revolving Extensions of
--------
Credit shall be increased by $10,000,000 upon the Sponsor's execution
and delivery of a guarantee of such $10,000,000 (including principal
thereof and interest thereon) satisfactory to the Required Lenders."
3. Amendment to Section 6 of the Credit Agreement. (a) Subsection
6.6 is hereby amended by adding the following clause at the end of such Section:
Page 2
"(d) Permit the Administrative Agent to conduct, or to cause a
third party to conduct, an audit of the Collateral (the "First Quarter
Collateral Audit") for the fiscal quarter ended March 31, 2000 at the
expense of the Borrower, and any of the Lenders may accompany the
Administrative Agent and participate in such audit to the extent
desired by such Lender. The First Quarter Audit may be performed by
the Administrative Agent's in-house audit and asset management review
staff. The Borrower agrees to pay to the Administrative Agent on
demand all fees, charges and out-of-pocket expenses of the
Administrative Agent in connection with the First Quarter Collateral
Audit."
(b) Subsection 6.2 of the Credit Agreement is hereby amended by
adding the following clause to the end of such Subsection:
"(h) within 3 days prior to the beginning of the first and third
week of each calendar month, a projected 90-day cash flow report, and
such related financial or other information as any Lender may
reasonably request."
(c) Section 6 of the Credit Agreement is hereby amended by adding the
following subsection at the end of such Section:
"6.10. Interest Payment in Kind. With respect to any interest
payment on the Sponsor Notes due and owing on or after the Second
Amendment Effective Date, pay such interest in kind, unless otherwise
agreed to in writing by the Required Lenders."
4. Conditions to Effectiveness of this Amendment. This Second
Amendment shall become effective on and as of the date hereof upon the
satisfaction of the following conditions precedent (such date the "Second
Amendment Effective Date"):
(a) The execution and delivery of the Second Amendment by the
Borrower, the holder of the Sponsor Notes, the Administrative Agent and the
Required Lenders.
(b) The Borrower shall have paid all fees and expenses in connection
with the Second Amendment.
(c) No Default or Event of Default shall have occurred and be
continuing after giving effect to the amendments contemplated herein.
(d) Each of the representations and warranties made by the Loan
Parties and their Subsidiaries in or pursuant to the Loan Documents shall be
true and correct in all material respects on and as of the date hereof as if
made on and as of the date hereof, except for any representation and warranty
which is expressly made as of an earlier date, which representation and warranty
shall have been true and correct in all material respects as of such earlier
date.
5. Waiver. The Lenders hereby waive (a) any violation of any
covenant set forth in Section 7.1(a), (b) or (c) through July 15, 2000 (the
"Extension Date") and (b) any Event of Default which has occurred by virtue of
such violation through the Extension Date. Any violation, prior to the
Extension Date, of any covenant set forth in Section 7.1(a), (b) or (c) shall
not be deemed an Event of Default.
6. Amendment Fee. The Borrower agrees to pay to each Lender which
executes and delivers this First Amendment to the Administrative Agent on or
prior to May 15, 2000 an amendment fee in an amount equal to 0.125% of the
amount of such Lender's Commitment, payable in immediately available funds on or
before the Second Amendment Effective Date.
2
7. Miscellaneous.
-------------
(a) Effect. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Loan
Documents shall remain unamended and not waived and shall continue to be in full
force in effect.
(b) Counterparts. This Second Amendment may be executed by one or
more of the parties to this Second Amendment on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Second
Amendment signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
(c) Severability. Any provision of this Second Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(d) Integration. This Second Amendment and the other Loan Documents
represent the agreement of the Loan Parties, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to the subject matter hereof not expressly set forth or referred
to herein or in the other Loan Documents.
(e) GOVERNING LAW. THIS SECOND AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(f) Sponsor Notes. The only holder of the Sponsor Notes is WCAS
Capital Partners III, L.P (the "Sponsor Note Holder"). The Sponsor Note Holder
hereby elects to receive all payments of interest on the Sponsor Notes which
become due and owing on or after the Second Amendment Effective Date in kind
pursuant to the mechanism set forth in Section 2(b) of the Sponsor Note, unless
otherwise agreed to in writing by the Required Lenders.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment and Waiver to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
BANCTEC, INC.
By: /s/ Xxxxxx Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxx Xxxxxx
Title: Sr. VP & CFO
For purposes of Section 7(f) only:
WCAS CAPITAL PARTNERS III, L.P.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent, Syndication Agent and
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx, Vice President
Title: Chase Bank of Texas, National
Association
ABN AMRO BANK N.V., as Co-Agent and as a
Lender
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Xxxxx
---------------------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager, Loan Operations
BANK ONE, TEXAS, N.A.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
COMERICA BANK
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: First Vice President
GUARANTY FEDERAL BANK, F.S.B.
By:
---------------------------------------
Name:
Title:
IBM CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager of Credit
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
XXXXX FARGO BANK (TEXAS), N.A.
By:
---------------------------------------
Name:
Title:
EXECUTION COPY
WAIVER
WAIVER, dated as of August 14, 2000 (the "Waiver"), to the Credit
Agreement, dated as of July 22, 1999 (as amended, supplemented or otherwise
modified, the "Credit Agreement"), among BANCTEC, INC., a Delaware corporation
(the "Borrower"), the several banks and other financial institutions or entities
from time to time parties thereto (the "Lenders"), ABN AMRO Bank N.V., as Co-
Agent, CHASE BANK OF TEXAS, N.A. ("CHASE"), as syndication agent (in such
capacity, the "Syndication Agent"), and CHASE BANK OF TEXAS, N.A., as
administrative agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders, the Administrative Agent and the
Syndication Agent are parties to the Credit Agreement;
WHEREAS, the Borrower has requested an extension of the temporary
waiver of certain provisions of the Credit Agreement granted in the Waiver,
dated as of July 15, 2000, to the Credit Agreement; and
WHEREAS, the Required Lenders have consented to the requested waiver
as set forth herein;
NOW THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto hereby agree as follows:
2. Definitions. Terms defined in the Credit Agreement are used
herein with the respective meanings given to them therein.
2. Waiver. The Lenders hereby waive (a) any violation of any
covenant set forth in Section 7.1(a), (b) or (c) through September 15, 2000 (the
"Extension Date") and (b) any Event of Default which has occurred by virtue of
such violation through the Extension Date. Any violation, prior to the
Extension Date, of any covenant set forth in Section 7.1(a), (b) or (c) shall
not be deemed an Event of Default.
3. Conditions to Effectiveness of this Waiver. This Waiver shall
become effective on and as of the date hereof upon the satisfaction of the
following conditions precedent (such date the "Waiver Effective Date"):
(a) The execution and delivery of the Waiver by the Borrower, the
Administrative Agent and the Required Lenders.
(b) No Default or Event of Default shall have occurred and be
continuing after giving effect to the waiver contemplated herein.
(c) Each of the representations and warranties made by the Loan
Parties and their Subsidiaries in or pursuant to the Loan Documents shall be
true and correct in all material respects on and as of the date hereof as if
made on and as of the date hereof, except for any representation and warranty
which is expressly made as of an earlier date, which representation and warranty
shall have been true and correct in all material respects as of such earlier
date.
4. Miscellaneous.
-------------
(a) Effect. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Loan
Documents shall remain unamended and not waived and shall continue to be in full
force in effect.
(b) Counterparts. This Waiver may be executed by one or more of the
parties to this Waiver on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Waiver signed by all the parties shall
be lodged with the Borrower and the Administrative Agent.
(c) Severability. Any provision of this Waiver which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(d) Integration. This Waiver and the other Loan Documents represent
the agreement of the Loan Parties, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender relative
to the subject matter hereof not expressly set forth or referred to herein or in
the other Loan Documents.
(e) GOVERNING LAW. THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BANCTEC, INC.
By: /s/ Xxxxxx Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxx Xxxxxx
Title: Sr. V.P. & Chief Financial Officer
THE CHASE MANHATTAN BANK, as Administrative
Agent, Syndication Agent and as a Lender
By: /s/ X.X. Xxxxx
---------------------------------------
Name:
Title: SVP
ABN AMRO BANK N.V., as Co-Agent and as a
Lender
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By: /s/ M.D. Xxxxx
---------------------------------------
Name: M. D. Xxxxx
Title: Agent
BANK ONE, TEXAS, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: First Vice President
COMERICA BANK
By:
---------------------------------------
Name:
Title:
GUARANTY FEDERAL BANK, F.S.B.
By:
---------------------------------------
Name:
Title:
IBM CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager of Credit, Commercial &
Specialty Financing
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
XXXXX FARGO BANK (TEXAS), N.A.
By:
---------------------------------------
Name:
Title:
