Exhibit 10.1
EXECUTION COPY
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as of
December 10, 2004 to the Credit Agreement referenced below is by and among DST
Systems, Inc., a Delaware corporation (the "Borrower"), West Side Investments,
Inc., a Nevada corporation (the "Guarantor"), 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").
W I T N E S S E T H
WHEREAS, $650 million in credit facilities have been established in favor
of the Borrower pursuant to the terms of that Credit Agreement dated as of
November 24, 2003 (as amended by that certain First Amendment to Credit
Agreement dated as of September 14, 2004 and as may be further amended,
restated, modified or supplemented from time to time, the "Credit Agreement")
among the Borrower, the Guarantor, 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, IN 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:
1. Defined Terms. Capitalized terms used herein but not otherwise defined
herein shall have the meanings provided to such terms in the Credit Agreement.
2. Amendments. Subject to the satisfaction of the conditions precedent set
forth in Section 3 hereof, the Credit Agreement is amended in the following
respects:
(a) A new definition of "Equiserve Disposition" is added to Section
1.01 in the appropriate alphabetical order to read as follows:
"Equiserve Disposition" shall mean the Disposition by the Borrower of
all of the shares of Capital Stock of Equiserve, Inc. to Computershare
Ltd., an Australian corporation ("CPU"), Computershare (US), a
Delaware general partnership ("CPU US") and EQAC Inc., a Delaware
corporation ("EQAC") for approximately $216,000,000 in cash and
29,605,000 shares of the Capital Stock
of CPU pursuant to the terms of a Stock Purchase Agreement dated as of
October 20, 2004 by and among the Borrower, CPU, CPU US and EQAC.
(b) Section 8.05 (captioned "Dispositions") of the Credit Agreement is
modified by replacing the parenthetical that reads "(excluding any assets
sold or otherwise transferred in connection with a Permitted Securitization
Transaction and Excluded Dispositions)" in clause (d) thereof with the
following:
"(excluding and any assets sold or otherwise transferred in connection
with a Permitted Securitization Transaction, Excluded Dispositions and
the Equiserve Disposition)".
(c) Section 8.06 (captioned "Restricted Payments") of the Credit
Agreement is modified as follows:
(i) the reference in clause (f) thereof to "7.5%" is hereby
deleted and replaced with "10.0%";
(ii) the parenthetical in clause (f) thereof that reads
"(measured as of December 31 of the most recently ended
fiscal year)" is hereby deleted and replaced with the
following:
"(measured as of the last day of the immediately preceding
fiscal year for which the Required Financial Information has
been received by the Administrative Agent)"; and
(iii)the following proviso is hereby added to the end of clause
(f) thereof:
"provided that, with respect to fiscal year 2005 only, the
limitation set forth in this clause (f) shall be increased
by an additional $160,000,000 which shall be available for
share repurchases by the Borrower that are consummated
utilizing the after-tax net proceeds of the Equiserve
Disposition."
(d) Section 8.11(b) (captioned "Consolidated Net Worth") of the Credit
Agreement is modified by adding the following at the end thereof:
", then decreased by an amount equal to fifty percent (50%) of the
cost of all shares of Capital Stock of the Borrower repurchased by the
Borrower after the date of this Agreement (other than those shares of
Capital Stock of the Borrower received by the Borrower in connection
with the Janus Transaction)".
3. Conditions Precedent. This Amendment shall become effective upon receipt
by the Administrative Agent of counterparts of this Amendment duly executed by
the Borrower, the Guarantor and the Required Lenders.
4. Representations and Warranties. The Borrower and the Guarantor each
hereby represent and warrant 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 either the
Borrower or the Guarantor or any of their 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) after giving effect to
this Amendment, no Default or Event of Default exists under the Credit Agreement
on and as of the date hereof or will occur as a result of the transactions
contemplated hereby.
5. 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.
6. Costs and Expenses. The Borrower agrees to pay all reasonable 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 Moore & Van Allen, PLLC.
7. Counterparts; Facsimile. 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 by any party hereto shall be effective
as such party's original executed counterpart.
8. 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.
9. 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.
10. Acknowledgment of Guarantor. The Guarantor acknowledges and consents to
all of the terms and conditions of this Amendment and agree that this Amendment
and any documents executed in connection herewith do not operate to reduce or
discharge the Guarantor's obligations under the Credit Agreement or the other
Loan Documents.
11. Affirmation of Liens. Each Loan Party affirms the liens and security
interests created and granted by it in the Loan Documents (including, but not
limited to, the Security Agreement) and agrees that this Amendment shall in no
manner adversely affect or impair such liens and security interests.
[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/ Kenneth V. Hager
-----------------------------
Name: Kenneth V. Hager
Title: Vice President, CFO, Treasurer
GUARANTOR: WEST SIDE INVESTMENTS, INC.,
a Nevada corporation
By: /s/ Kenneth V. Hager
-----------------------------
Name: Kenneth V. Hager
Title: Secretary, Treasurer
[signature pages continue]
ADMINISTRATIVE AGENT
AND LENDERS: BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Mollie S. Canup
-----------------------------
Name: Mollie S. Canup
Title: Vice President
BANK OF AMERICA, N.A.,
as a Lender, L/C Issuer and Swing Line
Lender
By: /s/ B. Kenneth Burton, Jr.
-----------------------------
Name: B. Kenneth Burton, Jr.
Title: Vice President
CITIBANK, N.A.,
By: /s/ Matthew Nicholls
-----------------------------
Name: Matthew Nicholls
Title: Director
WELLS FARGO BANK, N.A.
By: /s/ Tammy R. Sturgis
-----------------------------
Name: Tammy R. Sturgis
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Karen E. Samuel
-----------------------------
Name: Karen E. Samuel
Title: Vice President
SUMITOMO MITSUI BANKING CORP.,
NEW YORK
By: /s/ Edward McColly
-----------------------------
Name: Edward McColly
Title: Vice President & Department Head
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ Shinichiro Munechika
-----------------------------
Name: Shinichiro Munechika
Title: Deputy General Manager
COMMERZEBANK AKTIENGESELLSCHAFT, NEW
YORK BRANCH AND GRAND CAYMAN BRANCHES
By: /s/ Albert Morrow
-----------------------------
/s/ John Marlatt
-----------------------------
Name: Albert Morrow
Name: John Marlatt
Title: Assistant Vice President
Title: Senior Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Vijaya Kulkarni
-----------------------------
Name: Vijaya Kulkarni
Title: AVP
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Philippe Sandmeier
-----------------------------
Name: Philippe Sandmeier
Title: Senior Vice President
UMB BANK, N.A.
By: /s/ Douglas F. Page
-----------------------------
Name: Douglas F. Page
Title: Executive Vice President
COMMERCE BANK, N.A.
By: /s/ Pamela H. Hosty
-----------------------------
Name: Pamela H. Hosty
Title: Vice President
PB CAPITAL CORPORATION
By: /s/ Tyler J. McCarthy
-----------------------------
Name: Tyler J. McCarthy
Title: Vice President
By: /s/ Michael Bedore
-----------------------------
Name: Michael Bedore
Title: Vice President
CM LIFE INSURANCE COMPANY
By: BABSON CAPITAL MANAGEMENT LLC AS
INVESTMENT SUB-ADVISER
By: /s/ Emeka O. Onukwugha
-----------------------------
Name: Emeka O. Onukwugha
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: BABSON CAPITAL MANAGEMENT LLC AS
INVESTMENT ADVISER
By: /s/ Emeka O. Onukwugha
Name: Emeka O. Onukwugha
-----------------------------
Title: Managing Director
U.S. BANK, NATIONAL ASSOCIATION
By: /s/ Martin Nay
-----------------------------
Name: Martin Nay
Title: Vice President