Exhibit 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as of
September 1, 2006 to the Credit Agreement referenced below is by and among DST
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").
WITNESSETH
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, as
amended by that certain First Amendment to Credit Agreement dated as of February
17, 2006 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, 1N 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:
DEFINED TERMS. Capitalized terms used herein but not otherwise defined
herein shall have the meanings provided to such terms in the Credit Agreement.
AMENDMENTS. Subject to the satisfaction of the conditions precedent set
forth in Section 3 hereof, the Credit Agreement is amended in the following
respects:
Section 1.01 of the Credit Agreement is hereby amended by changing the
section reference in the definition of "Citibank Forward" from Section 8.06(g)
to Section 8.06(k).
Section 1.01 of the Credit Agreement is hereby amended by deleting the
definition of "Consolidated Net Worth" in its entirety.
Section 1.01 of the Credit Agreement is hereby amended by deleting the
definition of "Pro Forma Compliance Certificate" in its entirety and replacing
such definition with the following:
"Pro Forma Compliance Certificate" means a certificate of a
Responsible Officer of the Borrower delivered to the
Administrative Agent (to the extent required) in connection with
any Acquisition as referred to in Section 8.02(i) for
consideration in excess of $25,000,000, as applicable, and
containing reasonably detailed calculations, upon giving effect
to the applicable transaction on a Pro Forma Basis, of the
Consolidated Leverage Ratio and the Consolidated Interest
Coverage Ratio as of the most recent fiscal quarter end preceding
the date of the applicable transaction with respect to which the
Administrative Agent shall have received the Required Financial
Information.
Section 8.06 is amended by deleting the word "and" at the end of clause (g)
thereof, renumbering existing clause (h) thereof to clause (k) and adding a new
clauses (h), (i) and (j) to read as follows:
(h) with respect to the period prior to August 31, 2007 only, the
Borrower may repurchase or redeem its Capital Stock utilizing up to
$254,000,000 of the cash dividend received by the Borrower from Asurion
Corporation on July 13, 2006;
(i) the Borrower may repurchase or redeem its Capital Stock in an
aggregate amount not to exceed $50,000,000 utilizing the cash proceeds of
the sale of real property, in one or more transactions; provided each such
repurchase or redemption of its Capital Stock occurs within one year of the
receipt of such proceeds from each such respective sale of real property;
(j) the Borrower may repurchase or redeem its Capital Stock from
employees in connection with the exercise of stock options and/or the
vesting of restricted stock of such employees in the amount necessary to
fund the cash payments made by the Borrower to the IRS to cover the tax
liabilities of such employees related to such exercise of stock options or
vesting of restricted stock; and
Section 8.11(a) is hereby deleted in its entirety and replaced with the
following:
(a) CONSOLIDATED LEVERAGE RATIO. Permit the Consolidated Leverage
Ratio as of the end of any fiscal quarter of the Borrower to be greater
than 3.25 to 1.00.
Section 8.11(b) is hereby deleted in its entirety and replaced with the
following:
(b) [reserved]
Section 11.07(b)(iv) is hereby deleted in its entirety and replaced with
the following:
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500 payable by the
assignor or assignee; provided, however, that that Administrative Agent
may, in its sole discretion, elect to waive such processing and recordation
fee in the case of any assignment. The Eligible Assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
Schedule 11.07 is hereby deleted in its entirety.
CONDITIONS PRECEDENT. This Amendment shall become effective upon the
satisfaction of the following conditions:
EXECUTION OF COUNTERPARTS OF AMENDMENT. Receipt by the Administrative Agent
of counterparts of this Amendment duly executed by the Borrower, the
Administrative Agent and the Required Lenders; and
FEES AND EXPENSES. The payment by the Borrower to the Administrative Agent
(or its Affiliates) of all fees and reasonable expenses relating to this
Amendment which are due and payable on the date hereof including all reasonable
out of pocket 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, special
counsel to the Administrative Agent.
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.
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.
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.
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.
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 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]
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/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President & Chief Accounting Officer
[signature pages continue]
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT -
DST SYSTEMS, INC.
ADMINISTRATIVE AGENT
AND LENDERS: BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT -
DST SYSTEMS, INC.
BANK OF AMERICA, N.A.,
as a Lender, L/C Issuer and Swing Line Lender
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT -
DST SYSTEMS, INC.
CITIBANK, N.A.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT -
DST SYSTEMS, INC.
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT -
DST SYSTEMS, INC.
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT -
DST SYSTEMS, INC.
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT -
DST SYSTEMS, INC.
SUMITOMO MITSUI BANKING CORP.,
NEW YORK
By: /s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT -
DST SYSTEMS, INC.
LLOYDS TSB BANK plc
By: /s/ Windsor X. Xxxxxx
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Name: Windsor X. Xxxxxx
Title: Director, Global Corporate USA
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: VP & Manager, Global Corporate USA
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT -
DST SYSTEMS, INC.
THE ROYAL BANK OF SCOTLAND plc
By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Managing Director
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT -
DST SYSTEMS, INC.
COMMERZEBANK
AKTIENGESELLSCHAFT, NEW YORK
BRANCH AND GRAND CAYMAN
BRANCHES
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: XXXXXX XXXXXX
Title: Assistant Vice President
By: /s/ Hajo Neugartner
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Name: HAJO NEUGARTNER
Title: Vice President
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT -
DST SYSTEMS, INC.
UMB BANK, N.A.
By: /s/ Xxxxxxx X. Page
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Name: Xxxxxxx X. Page
Title: Executive Vice President
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT -
DST SYSTEMS, INC.
COMMERCE BANK, N.A.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT -
DST SYSTEMS, INC.
THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., CHICAGO BRANCH
By: /s/ Tsuguyuki Umene
---------------------------------------------
Name: Tsuguyuki Umene
Title: Deputy General Manager
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT -
DST SYSTEMS, INC.
