SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT dated as of November 15, 2006 (this
“Amendment”) by and among THE BISYS GROUP, INC., a Delaware corporation (the
“Borrower”), the several banks and other financial institutions from time to time party
hereto (the “Lenders”), and SUNTRUST BANK, in its capacity as Administrative Agent for the
Lenders (the “Administrative Agent”).
WHEREAS, the Borrower, the Lenders party thereto and the Administrative Agent are parties to
that certain Credit Agreement dated as of January 3, 2006, as amended by that certain First
Amendment to Credit Agreement (the “First Amendment”) dated as of August 31, 2006 (as in
effect on the date hereof, the “Credit Agreement”);
WHEREAS, the Borrower, the Lenders party hereto and the Administrative Agent desire to amend
the Credit Agreement in certain respects on the terms and conditions contained herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:
Section 1. Amendments to Credit Agreement.
(a) The Credit Agreement is hereby amended by deleting the definition of “Consolidated EBITDA”
appearing in Section 1.1 thereof in its entirety and substituting in lieu thereof the following:
“Consolidated EBITDA” means, for any period, Consolidated Net Income for such period
plus the sum of, without duplication, (i) Consolidated Interest Expense, (ii) provision for
income taxes, (iii) depreciation, amortization and all other non-cash charges for such period of
the Borrower and the Subsidiaries determined on a consolidated basis in accordance with GAAP and
(iv) payments made in respect of the settlement of any Settled Proceedings, each to the extent
deducted in determining Consolidated Net Income for such period and minus the sum of
non-cash gains for such period to the extent included in determining Consolidated Net Income for
such period.
(b) The Credit Agreement is hereby further amended by deleting the definition of “Revolving
Commitment” appearing in Section 1.1 thereof in its entirety and substituting in lieu thereof the
following:
“Revolving Commitment” means, with respect to each Lender having a Revolving
Commitment, the commitment of such Lender to make Revolving Loans and to acquire participations in
Letters of Credit in an aggregate outstanding amount not exceeding the amount of such Lender’s
Revolving Commitment as set forth on the signature page hereof, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Revolving Commitment, as applicable, as such
Revolving Commitment may be adjusted from time to time
pursuant to Section 2.7 or pursuant to
assignments by or to such Lender pursuant to Section 10.4. The initial aggregate amount of the
Revolving Commitments on the Agreement Date is $100,000,000.
(c) The Credit Agreement is hereby further amended by adding the following new definition in
its appropriate alphabetical place in Section 1.1 of the Credit Agreement:
“‘Settled Proceedings’ means each of the lawsuits and/or administrative
proceedings set forth and described on Schedule 1.1(A) attached hereto.”
(d) The Credit Agreement is hereby further amended by attaching thereto as “Schedule 1.1(A)”
the Schedule 1.1(A) attached to this Amendment.
(e) The Credit Agreement is hereby further amended by deleting Section 2.5 of the Credit
Agreement in its entirety and replacing such Section with the following new Section 2.5:
“Section 2.5 Extension of Maturity Date
The Borrower shall have the right, exercisable one time, to request that the
Administrative Agent and the Lenders agree to extend the current Maturity Date to December
31, 2007. The Borrower may exercise such right by executing and delivering to the
Administrative Agent at least 30 days prior to the current Maturity Date, a written request
for such extension. The Administrative Agent shall forward to each Lender a copy of such
extension request delivered to the Administrative Agent promptly upon receipt thereof.
Subject to satisfaction of the following conditions, the Maturity Date shall be extended to
December 31, 2007: (a) immediately prior to such extension and immediately after giving
effect thereto, no Default or Event of Default shall have occurred and be continuing and (b)
the Borrower shall have paid the fees payable under that certain fee letter dated as of
November 15, 2006 among the Borrower, SunTrust Capital Markets, Inc. and the Administrative
Agent in connection with such extension.”
(f) The Credit Agreement is hereby further amended by adding the following new Section 2.12 to
Article II of the Credit Agreement:
“Section 2.12 Additional Term Loan
At any time prior to December 8, 2006, the Borrower shall have the right, exercisable
one time, subject to the terms and conditions of this Section 2.12, to request a term loan
from SunTrust in an aggregate amount up to, but not exceeding, $50,000,000, such term loan
to be funded no later than January 15, 2007. Any such term loan must be in an aggregate
minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof.
Promptly following receipt by SunTrust of such request, SunTrust agrees to seek credit
approval for such term loan in a manner consistent with SunTrust’s standard credit approval
process. In no event shall SunTrust be obligated at any time to make such term loan. In
connection with the making of such term loan pursuant to this
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Section, the Borrower shall
(i) make appropriate arrangements so that SunTrust receives a new Note in the amount of such
term loan within 2 Business Days of the making of such term loan, (ii) execute and deliver
such other documents, amendments to Loan Documents and instruments and take such further
actions as the Administrative Agent may reasonably request in connection with the foregoing
and (iii) pay all fees due and payable to SunTrust pursuant to any separate fee letter in
connection with such term loan.”
(g) The Credit Agreement is hereby further amended by deleting Section 5.2(b) of the Credit
Agreement in its entirety and replacing such provision with the following:
“(b) Intentionally Deleted”
Section 2. Delivery of FY 2006 Form 10-K. Notwithstanding anything in Section
6.1(a) of the Credit Agreement or in the First Amendment to the contrary, the Borrower shall have
until January 15, 2007 to deliver the information required to be delivered under Section 6.1(a) of
the Credit Agreement with respect to its fiscal year ending June 30, 2006. For avoidance of doubt,
the Borrower’s failure to deliver such information on or before January 15, 2007 shall constitute
an Event of Default for all purposes under the Credit Agreement and the other Loan Documents.
Section 3. Delivery of First and Second Fiscal Quarter Form 10-Q. Notwithstanding
anything in Section 6.1(b) of the Credit Agreement to the contrary, (i) the Borrower shall have
until March 1, 2007 to deliver the information required to be delivered under Section 6.1(b) of the
Credit Agreement with respect to its fiscal quarter ending September 30, 2006 and (ii) the Borrower
shall have until May 1, 2007 to deliver the information required to be delivered under Section
6.1(b) of the Credit Agreement with respect to its fiscal quarter ending December 31, 2006. For
avoidance of doubt, the Borrower’s failure to deliver such information on or before March 1, 2007
or May 1, 2007, as the case may be, shall constitute an Event of Default for all purposes under the
Credit Agreement and the other Loan Documents.
Section 4. Effectiveness of Amendment. The effectiveness of this Amendment is
subject to the truth and accuracy of the representations set forth in Section 5 below and receipt
by the Administrative Agent of each of the following, each of which shall be in form and substance
satisfactory to the Administrative Agent:
(a) Counterparts of this Amendment duly executed by the Borrower, each Subsidiary Guarantor,
the Administrative Agent and the Required Lenders;
(b) Counterparts of that certain fee letter dated as of the date hereof duly executed by the
Borrower, SunTrust Bank and SunTrust Capital Markets, Inc.;
(c) All fees due and payable by the Borrower on the date hereof, whether pursuant to the
Credit Agreement, any other Loan Document or any separate fee letter; and
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(d) Such other documents, agreements, instruments, certificates or other confirmations as the
Administrative Agent may reasonably request.
Section 5. Representations of Borrower. The Borrower represents and warrants to the
Administrative Agent and the Lenders that:
(a) Corporate Power and Authority. The Borrower has the corporate
power and authority to execute, deliver and perform the terms and provisions of this
Amendment, and has taken all necessary corporate action to authorize the execution,
delivery and performance by them of this Amendment. The Borrower has duly executed
and delivered this Amendment, and this Amendment constitutes its legal, valid and
binding obligation enforceable in accordance with its terms, except to the extent
that the enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors’
rights and by equitable principles (regardless of whether enforcement is sought in
equity or at law).
(b) No Violation. Neither the execution, delivery or performance by the Borrower of
this Amendment and the Credit Agreement, as amended hereby, nor compliance by it with the terms and
provisions hereof and thereof, (i) will contravene any provision of any law, statute, rule or
regulation or any order, writ, injunction or decree of any court or Governmental Authority, (ii)
will conflict with or result in any breach of any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of the Borrower pursuant to the terms
of any material indenture, mortgage, deed of trust, credit agreement or loan agreement, or any
other material agreement, contract or instrument, to which the Borrower is a party or by which it
or any of its property or assets is bound or to which it may be subject or (iii) will violate any
provision of the certificate or articles of incorporation or by-laws (or equivalent organizational
documents) of the Borrower.
(c) Governmental Approvals. No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except for those that have otherwise been
obtained or made on or prior to the date of the effectiveness of this Amendment and which remain in
full force and effect on such date) or exemption by, any Governmental Authority, is required to
authorize, or is required in connection with, (i) the execution, delivery and performance of this
Amendment by the Borrower or (ii) the legality, validity, binding effect or enforceability of this
Amendment, and the Credit Agreement, as amended hereby, against the Borrower.
(d) No Default. No Default or Event of Default now exists or will exist immediately
after giving effect to this Amendment.
(e) Schedule 1.1(A). The information set forth on Schedule 1.1(A) attached hereto is
true, accurate and complete in all material respects.
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(f) Reaffirmation of Representations. The Borrower hereby repeats and reaffirms all
representations and warranties made by it to the Administrative Agent and the Lenders in the Credit
Agreement and the other Loan Documents to which it is a party on and as of the date hereof (and
after giving effect to this Amendment) with the same force and effect as if such representations
and warranties were set forth in this Amendment in full (except to the extent of changes resulting
from transactions contemplated or permitted by the Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in the aggregate are not
materially adverse, and to the extent that such representations and warranties relate expressly to
an earlier date).
Section 6. Amendment as a Loan Document. Each reference in the Credit Agreement or
in any of the other Loan Documents to “Loan Documents” shall be deemed to include a reference to
this Amendment, and this Amendment shall be a Loan Document for all purposes under the Loan
Documents.
Section 7. References to the Credit Agreement. Each reference to the Credit
Agreement in any of the Loan Documents (including the Credit Agreement) shall be deemed to be a
reference to the Credit Agreement, as amended by this Amendment.
Section 8. Benefits. This Amendment shall be binding upon and shall inure to the
benefit of the parties hereto and their respective permitted successors and assigns.
Section 9. Expenses. The Borrower agrees to reimburse the Lenders and the
Administrative Agent on demand for all reasonable costs and expenses (including, without
limitation, attorneys’ fees) incurred by such parties in negotiating, documenting and consummating
this Amendment, the other documents referred to herein, and the transactions contemplated hereby
and thereby.
Section 10. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
Section 11. Effect/No Novation. Except as expressly herein amended, the terms and
conditions of the Credit Agreement and the other Loan Documents shall remain in full force and
effect. Neither this Amendment nor any of the transactions contemplated hereby shall be deemed to
be a novation of any of the Obligations.
Section 12. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and shall be binding upon all
parties, their successors and assigns.
Section 13. Definitions. All capitalized terms not otherwise defined herein are used
herein with the respective definitions given them in the Credit Agreement.
[Signatures on Following Pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Credit Agreement
to be executed as of the date first above written.
| BORROWER: THE BISYS GROUP, INC. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | EVP & Chief Financial Officer | |||
[Signatures Continued on Following Page]
[Signature Page to Second Amendment to Credit Agreement
dated as of November 15, 2006 with THE BISYS GROUP, INC.]
dated as of November 15, 2006 with THE BISYS GROUP, INC.]
| ADMINISTRATIVE AGENT AND LENDERS: SUNTRUST BANK, Individually and as Administrative Agent |
||||
| By: | /s/ Xxxxxxx X. X’Xxxxx | |||
| Name: | Xxxxxxx X. X’Xxxxx | |||
| Title: | Director | |||
[Signatures Continued on Following Page]
[Signature Page to Second Amendment to Credit Agreement
dated as of November 15, 2006 with THE BISYS GROUP, INC.]
dated as of November 15, 2006 with THE BISYS GROUP, INC.]
The following hereby execute this Second Amendment to Credit Agreement to indicate their consent
thereto and agreement therewith and to acknowledge that the making of this Second Amendment to
Credit Agreement shall not terminate, limit or otherwise adversely affect any of their respective
obligations to the Administrative Agent, the Issuing Bank and the Lenders under the Loan Documents.
Further, the following hereby reaffirm their respective continuing obligations as a guarantor of
the Guaranteed Obligations (as defined in the Guarantee Agreement) under the Guarantee Agreement
and their respective obligations under each of the other Loan Documents to which they are a party.
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.
| By: /s/ Xxxxx Xxxxxxx | ||||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Executive Vice President of each of | |||
| the above-listed Guarantors | ||||
[Signatures End]
