Exhibit 10.11
EXECUTION COPY
AMENDMENT NO. 2 TO CREDIT AGREEMENT
Amendment No. 2 (this "Amendment"), dated as of September 24, 2002, to the
Credit Agreement, dated as of June 30, 1999, among The BISYS Group, Inc., the
Lenders party thereto, JP Morgan Chase Bank, Bank One, NA, Wachovia Bank,
National Association and Fleet National Bank, as co-agents thereunder, and The
Bank of New York, as Administrative Agent, as amended by Amendment No.1 dated as
of September 28, 2000 (as so amended, supplemented or otherwise modified, the
"Credit Agreement").
RECITALS
A. Capitalized terms used herein which are not defined herein and which
are defined in the Credit Agreement shall have the same meanings as therein
defined.
B. BISYS Fund Services Limited Partnership ("Fund Services") is a
registered broker-dealer and an Exempt Subsidiary and accordingly not within the
definition of a Subsidiary Guarantor. Notwithstanding the foregoing, Fund
Services executed and delivered the Guarantee Agreement. The Borrower and Fund
Services have requested the Administrative Agent to release Fund Services from
its obligations under the Guarantee Agreement and the Administrative Agent, with
the consent of the Required Lenders, is willing to so agree.
C. The Borrower has also requested that the Administrative Agent agree to
amend the Credit Agreement upon the terms and conditions contained in this
Amendment, and the Administrative Agent, with the consent of the Required
Lenders, is willing to so agree.
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
Borrower and the Administrative Agent, with the consent of the Required Lenders,
hereby agree as follows:
1. The obligations of Fund Services under the Guarantee Agreement are
released and Fund Services shall no longer be a Subsidiary Guarantor thereunder.
2. Section 4.16(a) of the Credit Agreement is hereby amended by adding at
the end of the first sentence a new sentence to read as follows:
Immediately before and after giving effect to the making of each
Loan, Margin Stock will constitute less than 25% of the Borrower's
assets as determined in accordance with Regulation U.
3. Sections 4.17 and 6.13 of the Credit Agreement are hereby deleted in
their entirety.
4. Section 7.8(c)(ii) is hereby amended and restated in its entirety to
read as follows:
The Borrower may repurchase shares of its capital stock, not subject
to or included in the limitation in subsection (i) of this
subsection (c), in an aggregate amount not in excess of
$60,000,000 in any fiscal year on a non-cumulative basis, provided
further that if the Borrower receives any amounts in cash during
such fiscal year as the result of the exercise of any option granted
to an employee of the Borrower or any of its Subsidiaries under any
stock option or employee stock purchase plan of the Borrower, the
portion of the foregoing $60,000,000 limitation utilized during such
fiscal year shall be reduced by the amounts so received.
5. Section 6.8 of the Credit Agreement is hereby amended by adding the
following subsection (c):
The Borrower acknowledges that Lenders are subject to, among other
laws, rules and regulations, Section 23A and Section 23B of the
Federal Reserve Act, as amended from time to time, and hereby
covenants and agrees not to use any Borrowing (or the proceeds
thereof) or Letter of Credit for the specific purpose of benefiting
or transferring any such Borrowing (or the proceeds thereof) or
Letter of Credit to, any affiliate of any Lender, including without
limitation, any Investment Company sponsored or organized by, or
affiliated with any such Lender.
6. Paragraphs 1 through 5 of this Amendment shall not be effective until
each of the following conditions is satisfied (the date, if any, on which such
conditions shall have been satisfied being referred to herein as the "Amendment
Effective Date"):
(a) the Administrative Agent (or its counsel) shall have received
from each of the Loan Parties and the Lenders either (i) a counterpart of this
Amendment 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 Amendment) that such Person has signed a counterpart of
this Amendment;
(b) the Administrative Agent shall have received a certificate,
dated the Amendment Effective Date and signed by the Secretary or Assistant
Secretary of the Borrower (together with a signature guaranty reasonably
satisfactory to the Administrative Agent with respect to such officer), (i)
attaching true and correct copies of all resolutions, consents and other
documents evidencing all necessary corporate action (in form and substance
reasonably satisfactory to the Administrative Agent) taken by the Borrower to
authorize this Amendment and the transactions contemplated hereby, (ii)
attaching a true and complete copy of the Borrower's Certificate of
Incorporation, the Borrower's By-laws or other organizational documents and
(iii) setting forth the incumbency of the officers of the Borrower who may sign
this Amendment and each agreement or other document executed or delivered in
connection herewith, including therein a signature specimen of each such
officer, and (iv) a certificate of good standing of the Secretary of State of
the State of Delaware with respect to the Borrower;
(c) the Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Amendment Effective Date, including,
to the extent invoiced, reimbursement or payment of all out of pocket expenses
required to be reimbursed or paid by the Borrower hereunder; and
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(d) the Administrative Agent shall have received such other
documentation and assurances as it shall reasonably request in connection with
this Amendment and the transactions contemplated hereby.
7. The Borrower 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 (x)
Fund Services is a registered broker-dealer and an Exempt Subsidiary and (y)
that no Default has occurred and is continuing (or would occur or be continuing
after giving effect to the release of Fund Services from its obligations under
the Guarantee Agreement) and that all of the respective representations and
warranties of the Loan Parties contained in the Loan Documents are true and
correct.
8. This Amendment 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 Amendment to produce or account
for more than one counterpart signed by the party to be charged.
This Amendment 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 laws of the State of New York.
The Credit Agreement and the Guarantee Agreement shall in all other
respects remain in full force and effect.
[SIGNATURE PAGES FOLLOW]
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THE BISYS GROUP, INC.
AMENDMENT NO. 2 TO CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 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/ Kevin J. Dell
-----------------------------------------
Name: Kevin J. Dell
Title: Executive Vice President
THE BISYS GROUP, INC.
AMENDMENT NO. 2 TO CREDIT AGREEMENT
THE BANK OF NEW YORK, individually and
as Administrative Agent
By: /s/ Steven L. Wexler
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Name: Steven L. Wexler
Title: Vice President
THE BISYS GROUP, INC.
AMENDMENT NO. 2 TO CREDIT AGREEMENT
CONSENTED AND AGREED TO BY:
JP MORGAN CHASE BANK
By: /s/ Leonard D. Noll
-----------------------------------------
Name: Leonard D. Noll
Title: Vice President
THE BISYS GROUP, INC.
AMENDMENT NO. 2 TO CREDIT AGREEMENT
CONSENTED AND AGREED TO BY:
BANK ONE, NA
By: /s/ Jeffrey Lubatkin
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Name: Jeffrey Lubatkin
Title: Director
THE BISYS GROUP, INC.
AMENDMENT NO. 2 TO CREDIT AGREEMENT
CONSENTED AND AGREED TO BY:
FLEET NATIONAL BANK
By: /s/ Russ J. Lopinto
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Name: Russ J. Lopinto
Title: Senior Vice President
THE BISYS GROUP, INC.
AMENDMENT NO. 2 TO CREDIT AGREEMENT
CONSENTED AND AGREED TO BY:
PNC BANK, NATIONAL ASSOCIATION
By: /s/Gary W. Wessels
-----------------------------------------
Name: Gary W. Wessels
Title: Vice President
THE BISYS GROUP, INC.
AMENDMENT NO. 2 TO CREDIT AGREEMENT
CONSENTED AND AGREED TO BY:
SUNTRUST BANK
By: /s/ Jennifer Deatley
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Name: Jennifer Deatley
Title: Assistant Vice President
THE BISYS GROUP, INC.
AMENDMENT NO. 2 TO CREDIT AGREEMENT
CONSENTED AND AGREED TO BY:
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Kimberly Shaffer
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Name: Kimberly Shaffer
Title: Director
THE BISYS GROUP, INC.
AMENDMENT NO. 2 TO CREDIT AGREEMENT
CONSENTED AND AGREED TO BY:
THE BANK OF NOVA SCOTIA
By: /s/ John W. Campbell
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Name: John W. Campbell
Title: Managing Director
THE BISYS GROUP, INC.
AMENDMENT NO. 2 TO CREDIT AGREEMENT
CONSENTED AND AGREED TO BY:
BISYS FINANCING COMPANY
UNIVERSAL PENSION, INC.
ASCENSUS INSURANCE SERVICES, INC.
BISYS FUND SERVICES OHIO, INC.
BISYS FUND SERVICES, INC.
BISYS INSURANCE SERVICES, INC.
BISYS, INC.
BISYS DOCUMENT SOLUTIONS, INC.
BISYS EDUCATION SERVICES, INC.
POTOMAC INSURANCE MARKETING GROUP INC.
AS TO EACH OF THE FOREGOING:
By: /s/ Kevin J. Dell
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Name: Kevin J. Dell
Title: Executive Vice President
CONSENTED AND AGREED TO BY:
BISYS INFORMATION SOLUTIONS L.P.
By: BISYS, INC., General Partner
By: /s/ Kevin J. Dell
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Name: Kevin J. Dell
Title: Executive Vice President
BISYS DOCUMENT SOLUTIONS, L.P.
By: BISYS DOCUMENT SOLUTIONS, INC.,
General Partner
By: /s/ Kevin J. Dell
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Name: Kevin J. Dell
Title: Executive Vice President
THE BISYS GROUP, INC.
AMENDMENT NO. 2 TO CREDIT AGREEMENT
BISYS RETIREMENT SERVICES LP
By: BPS (GP) INC., General Partner
By: /s/ Kevin J. Dell
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Name: Kevin J. Dell
Title: Executive Vice President
THE TONER ORGANIZATION, INC.
LIFE BROKERAGE CORPORATION
BISYS PLAN SERVICES, INC.
HARRISON JAMES, INC.
HEMISPHERE FINANCIAL SERVICES, INC.
BISYS MANAGEMENT COMPANY
DALTON PUBLICATIONS, LLC
AS TO EACH OF THE FOREGOING:
By: /s/ Kevin J. Dell
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Name: Kevin J. Dell
Title: Executive Vice President