CONSENT XX. 0
XXXXXXX XX. 0 (this "Consent"), dated as of September 13, 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, N.A., SUNTRUST BANK and WACHOVIA BANK,
NATIONAL ASSOCIATION, as Documentation Agents, and THE BANK OF NEW YORK, as
Administrative Agent, as amended by Amendment No. 1 and Consent No. 2, dated as
of July 27, 2005 (as so amended, the "Credit Agreement").
RECITALS
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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 Form 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) and
Amendment No. 1 (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. Pursuant to Amendment No. 1 and Consent No. 2, dated as of July 27,
2005 (collectively, "Amendment No. 1"), the Administrative Agent and the Lenders
consented to the extension of the Cure Period Expiration Date in respect of the
Defaults through and including September 13, 2005. In connection therewith, the
Borrower acknowledged and agreed 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 in Amendment No. 1 or 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.
E. 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
September 13, 2005 and has requested that the Administrative Agent and the
Lenders consent to the extension of the Cure Period Expiration Date in respect
of the Defaults through and including November 15, 2005 and the Administrative
Agent and the Lenders are willing to do so subject to the terms and conditions
of this Consent.
F. The Borrower's Form 10-K for the fiscal year ended June 30, 2005
(the "10-K") and its Compliance Certificate for the fiscal quarter ended June
30, 2005 (the "Fourth Quarter Compliance Certificate") are each required to be
delivered to the Administrative Agent on or before September 28, 2005, the date
required by Section 6.1(b) of the Credit Agreement. The Borrower does not
expect to be in a position to deliver the 10-K or the Fourth Quarter Compliance
Certificate on or before September 28, 2005. If the 10-K and Fourth Quarter
Compliance Certificate are not delivered on or before such date, a Default (the
"Anticipated Default") will occur, which Anticipated Default will become an
Event of Default if not cured or waived on or before October 28, 2005. The
Borrower has requested that the cure period in respect of the Anticipated
Default be extended to through and including November 15, 2005 and the
Administrative Agent and the Lenders are willing to do so subject to the terms
and conditions of this Consent.
G. In connection with the foregoing, pursuant to Section 2.7(b) of the
Credit Agreement, as a condition to the effectiveness of this Consent, the
Borrower will permanently reduce the aggregate Revolving Commitments to
$150,000,000. In connection therewith, the Borrower has requested that the
Administrative Agent and the Lenders to waive the notice provisions of Section
2.7(c) of the Credit Agreement in connection therewith and the Lenders are
willing to do so subject to the terms and conditions of this 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 signing below hereby
consent to the extension of (i) the Cure Period Expiration Date in respect of
the 10-Q Default and the Compliance Certificate Default and (ii) the cure period
in respect of the Anticipated Default, in each case through and including
November 15, 2005.
2. Pursuant to Section 2.7(b) of the Credit Agreement, the Borrower
hereby permanently reduces the aggregate Revolving Commitments to $150,000,000
and the Administrative Agent and the Lenders signing this Consent agree that
that notice of such reduction as otherwise required by Section 2.7(c) shall not
be required in connection with the foregoing reduction.
3. Paragraphs 1 and 2 of this Consent shall not become 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 Required Lenders either (i) a
counterpart of this 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 Consent) that such Person has
signed a counterpart of this Consent;
(b) the Administrative Agent shall have received on behalf of
the Lenders a prepayment of the Term Loans in an aggregate amount equal to
$33,750,000;
(c) the Administrative Agent shall have received for the
account of each Lender that shall have executed and delivered this Consent a fee
equal to 0.025% 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
after giving effect to the reduction in the Revolving Commitments described in
paragraph 2 and the prepayment of the Term Loan required by paragraph 3(b);
(d) the Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the effectiveness of this Consent,
including, to the extent invoiced, reimbursement or payment of all out-of-pocket
expenses (including the reasonable fees and expenses of counsel) required to be
reimbursed or paid by the Borrower under the Loan Documents; and
(e) the Administrative Agent shall have received such other
documentation and assurances as it shall reasonably request in connection with
this Consent and the transactions contemplated hereby.
4. 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.
5. 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 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.
6. 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.
7. By signing below, each Subsidiary Guarantor consents to this
Consent.
8. This 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 Consent to produce or account for
more than one counterpart signed by the party to be charged.
9. THIS 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.]
IN WITNESS WHEREOF, the parties hereto have caused this CONSENT NO. 3 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. Xxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxx
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. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: EVP
BISYS INFORMATION SOLUTIONS, L.P.
By: BISYS INFORMATION SOLUTIONS HOLDINGS I, INC.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: EVP
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. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: EVP
THE BANK OF NEW YORK, individually, as Issuing
Bank, as Swingline Lender and as Administrative
Agent
By: /s/ Xxxxx X. Xxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxx
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, N.A., individually and as
Documentation Agent
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: 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/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
CONSENTED TO AND AGREED:
US BANK, N.A.
By: /s/ M. Xxxxx Xxxxxxxxx
-----------------------------------------
Name: M. Xxxxx Xxxxxxxxx
Title: Vice President
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
CONSENTED TO AND AGREED:
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Yoshiro Hykutome
--------------------------------------
Name: Yoshiro Hykutome
Title: Joint General Manager
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
