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EXHIBIT 10.3
$100,000,000
MULTI-CURRENCY REVOLVING CREDIT
AND TERM LOAN AGREEMENT
DATED AS OF DECEMBER 24, 1996
AMONG
AMERICAN MANAGEMENT SYSTEMS, INCORPORATED,
VARIOUS OTHER BORROWERS,
THE LENDERS NAMED THEREIN,
WACHOVIA BANK OF GEORGIA, N.A., AS ADMINISTRATIVE AGENT
AND
NATIONSBANK, N.A., AS DOCUMENTATION AGENT
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TABLE OF CONTENTS
Title Page
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ARTICLE 1 - DEFINITIONS, TERMS AND REFERENCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Accounting Terms; GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.3 Other Referential Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.4 Exhibits and Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 2 - REVOLVING CREDIT LOAN FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.1 Revolving Credit Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.2 Swingline Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.3 Procedure for Revolving Credit Loans and Swingline Loans . . . . . . . . . . . . . . . . 16
Section 2.4 Continuation and Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2.5 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.6 Competitive Bid Loans; Procedure for Competitive Bid Borrowings . . . . . . . . . . . . 18
Section 2.7 The Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.8 Repayment of Revolving Credit Loans, Swingline Loans and Competitive
Bid Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.9 Interest Basis: Interest Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.10 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.11 Termination or Reduction of Commitment . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.12 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.13 Additional Borrowers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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Title Page
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ARTICLE 3 - TERM LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.1 Making the Term Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.2 Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.3 Interest; Interest Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.4 Term Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 4 - GENERAL FUNDING AND PAYMENT PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.1 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.2 Availability of Alternative Currency and Rate Options . . . . . . . . . . . . . . . . . 33
Section 4.3 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 4.4 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 4.5 Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.6 Funding Losses and Breakage Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.7 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.8 Payments to Wachovia and NationsBank Net of Certain Withholding Taxes . . . . . . . . . 38
Section 4.9 Highest Lawful Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 5.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.2 Survival of Representations and Warranties, etc. . . . . . . . . . . . . . . . . . . . . 41
ARTICLE 6 - COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.1 Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.2 Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.3 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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ARTICLE 7 - CONDITIONS OF LENDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 7.1 Conditions Precedent to Agreement and the Initial Loan Thereunder . . . . . . . . . . . 46
Section 7.2 Conditions Precedent to Each Loan or Letter of Credit . . . . . . . . . . . . . . . . . 47
ARTICLE 8 - EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 8.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE 9 - REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 9.1 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE 10 - SET-OFFS AND SHARING OF PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.1 Right of Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 10.2 Sharing of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 11 - THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 11.1 Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 11.2 Agent's Reliance, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 11.3 The Agents and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 11.4 Lender Credit Decision, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 11.5 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 11.6 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE 12 - GUARANTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 12.1 Obligations Guaranteed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 12.2 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 12.3 Lender's Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 12.4 Guaranty Absolute and Unconditional . . . . . . . . . . . . . . . . . . . . . . . . . . 55
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Title Page
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Section 12.5 Further Representations and Warranties; Credit Investigation . . . . . . . . . . . . . 55
Section 12.6 Reinstatement of Guaranteed Obligations . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 12.7 Subrogation Rights; Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE 13 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 13.1 No Waiver; Cumulative Rights; Severability . . . . . . . . . . . . . . . . . . . . . . 56
Section 13.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 13.3 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 13.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 13.5 Cost and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 13.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 13.7 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 13.8 Time of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 13.9 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 13.10 Agents and Lenders Not Joint Venturer . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 13.11 Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 13.12 Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 13.13 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 13.14 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 13.15 Independence of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 13.16 Revisions or Updates to Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 13.17 SUBMISSION TO JURISDICTION; WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 13.18 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 13.19 Lender Not In Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
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Section 13.20 Reproduction of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 13.21 Mitigation Obligations; Substitution of Lenders . . . . . . . . . . . . . . . . . . . 67
Section 13.22 Several Obligations of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 13.23 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 13.24 Margin Stock Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
EXHIBIT A Notice Of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B Notice Of Continuation/Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C Competitive Bid Borrowing Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
EXHIBIT D Revolving Credit Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
EXHIBIT E Revolving Credit Note (Alternative Currency) . . . . . . . . . . . . . . . . . . . . . . . . E-1
EXHIBIT F Swingline Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-1
EXHIBIT G Competitive Bid Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G-1
EXHIBIT H Term Loan Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . H-1
EXHIBIT I Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1
EXHIBIT J Closing Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J-1
EXHIBIT K Closing Certificate (Other Borrowers) . . . . . . . . . . . . . . . . . . . . . . . . . . . K-1
EXHIBIT L Opinion Of Counsel To American Management Systems, Incorporated . . . . . . . . . . . . . . L-1
EXHIBIT M Assignment and Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . M-1
EXHIBIT N Administrative Questionnaire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N-1
Schedule 2.10 List of Existing Letters of Credit issued by NationsBank, N.A.
Attachment A Authorization Matrix
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MULTI-CURRENCY REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS MULTI-CURRENCY REVOLVING CREDIT AND TERM LOAN AGREEMENT, made,
entered into and effective as of the 24th day of December, 1996, by and among
each of the borrowers named herein on the signature pages hereof (individually,
a "Borrower" and collectively, the "Borrowers"), American Management Systems,
Incorporated, as guarantor (the "Guarantor"), each of the lenders named herein
on the signature pages hereof (individually, a "Lender" and collectively, the
"Lenders"), Wachovia Bank of Georgia, N.A., as administrative agent for the
Lenders (in such capacity, the "Administrative Agent") and NationsBank, N.A.,
as documentation agent for the Lenders (in such capacity, the "Documentation
Agent").
WITNESSETH:
Each Borrower has requested that the Lenders make available to it
loans and letters of credit under a revolving credit facility in an aggregate
principal amount to all Borrowers at any time outstanding not to exceed EIGHTY
MILLION U.S. DOLLARS ($80,000,000.00). AMS has requested that each of Wachovia
and NationsBank make a term loan to AMS in the amount of TEN MILLION U.S.
DOLLARS ($10,000,000.00). Each of the Lenders is willing to make such loans
and letters of credit available to each Borrower under a revolving credit
facility and Wachovia and NationsBank are willing to make such term loans to
AMS upon the terms and subject to the conditions of this Agreement.
Accordingly, the Borrowers, the Lenders, the Guarantor, the
Administrative Agent and the Documentation Agent agree as follows:
ARTICLE 1
DEFINITIONS, TERMS AND REFERENCES
SECTION 1.1 CERTAIN DEFINITIONS. In addition to other terms
elsewhere defined herein, as used in this Agreement and in any Exhibits or
Schedules hereto, the following terms shall have the following meanings, unless
the context requires otherwise:
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire
in the form of Exhibit N.
"AFFILIATE" means, as to any Person, each other Person that directly
or indirectly (through one or more intermediaries or otherwise) controls, is
controlled by, or is under common control with, such Person.
"ADMINISTRATIVE AGENT" has the meaning set forth on the first page
hereof.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account maintained by the
Administrative Agent at Wachovia Bank of Georgia, N.A., #▇▇-▇▇▇-▇▇▇ for the
purposes of this
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Agreement or such other account as may be specified by the Administrative Agent
to the Borrowers and to the Lenders.
"AGENT" means either the Administrative Agent or the Documentation
Agent, and "AGENTS" means both of them.
"AGENT'S FEES" means the fees payable to the Administrative Agent
under the provisions of Section 2.12(c).
"AGGREGATE COMMITMENTS" means the sum of the Commitments, as same may
be reduced pursuant to Sections 2.11 and 13.13.
"AGREEMENT" means this Multi-Currency Revolving Credit and Term Loan
Agreement, as originally executed, and as amended, modified, supplemented,
restated, renewed or extended from time to time.
"AGREEMENT DATE" means the date first above written.
"ALTERNATIVE CURRENCY" means any currency other than U.S. Dollars
which is freely transferable and convertible into U.S. Dollars and in which
dealings in deposits are carried out in the London interbank market.
"AMS" means American Management Systems, Incorporated.
"APPLICABLE RATE" means, for any day, with respect to any Eurocurrency
Rate Revolving Credit Loan, or with respect to the Facility Fees payable
hereunder, or with respect to the Letter of Credit Fees payable hereunder, as
the case may be, the applicable rate per annum set forth below under the
caption "Eurocurrency Rate Margin," "Facility Fee," or "LC Fee," as the case
may be, based upon the ratio of Total Debt to EBITDA of AMS and its
consolidated Subsidiaries:
--------------------------------------------------------------------------------------------------
Total Debt : EBITDA Eurocurrency Rate Facility Fee LC Fee
Margin (basis points per (basis points per
(basis points per annum) annum) annum)
--------------------------------------------------------------------------------------------------
Less than or equal to 15.0 7.5 35.0
1.0
--------------------------------------------------------------------------------------------------
Greater than 1.0 but 22.5 10.0 45.0
less than or equal to
2.0
--------------------------------------------------------------------------------------------------
Greater than 2.0 30.0 15.0 57.5
--------------------------------------------------------------------------------------------------
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For purposes of the foregoing, the Applicable Rate for any date shall be
determined by reference to the ratio of Total Debt to EBITDA as of the last day
of the fiscal quarter of AMS most recently ended as of such determination date
(such calculation of EBITDA to be for the four fiscal quarters ending on such
date), and any change in the Applicable Rate shall become effective upon the
delivery to each Lender of the certificate with respect to the Financial
Statements to be delivered pursuant to Section 6.1(a) for the fiscal quarter or
fiscal year most recently ended, as the case may be, and shall apply to Loans
and Letters of Credit outstanding on such delivery date or made on and after
such delivery date, provided, however, that no such change shall take effect
with respect to a Eurocurrency Rate Revolving Credit Loan or a Competitive Bid
Loan until the last day of an Interest Period. Notwithstanding the foregoing,
at any time during which AMS failed to deliver to the Administrative Agent the
certificate referred to above with respect to a fiscal quarter or fiscal year
following the date that delivery of Financial Statements relating to such
fiscal quarter or fiscal year are required to be delivered under Section
6.1(a), the ratio of Total Debt to EDITDA shall be deemed, solely for the
purposes of calculating the Applicable Rate, to be greater than 2.0 until such
time as AMS shall have delivered such certificate and Financial Statements to
the Administrative Agent.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
the form of Exhibit M.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy Code" as now or hereafter in effect, or any successor statute,
including (unless the context otherwise requires) any rule or regulation
promulgated thereunder in each case as in effect from time to time. References
to Sections of the Bankruptcy Code shall be construed to also refer to any
successor Sections.
"BASE RATE" means, for any day, a simple interest rate per annum equal to
the higher of (a) the Prime Rate for such day and (b) the sum of the Federal
Funds Rate for such day plus .50%.
"BASE RATE LOAN" means any Loan which bears interest at the time in
question at the Base Rate.
"BASE RATE REVOLVING CREDIT LOAN" means any Revolving Credit Loan which
bears interest at the time in question at the Base Rate.
"BORROWER" means each of AMS, AMS Management Systems Deutschland GmbH,
AMS Management Systems Europe S.A./N.V., AMS Management Systems U.K. Ltd., AMS
Management Systems Canada Inc., AMSY Management Systems Netherlands, B.V.,
Nordic Business Management Systems AB, AMS Management Systems Australia Pty.
Limited, AMS Management Systems Espana, S.A., AMS Management Systems
(Switzerland) AG, AMS Management Systems Italia S.p.A., and, so long as the
Guaranty is in full force and effect, each other Subsidiary of AMS, if any,
designated by AMS pursuant to Section 2.13 hereof; and "BORROWERS" means all of
the foregoing.
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"BORROWER CURRENCY" means the Alternative Currency which is the lawful
currency of the nation under the laws of which a Borrower (other than AMS) is
organized.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which commercial banks in Atlanta or New York are authorized or required to
close; and, if the applicable Business Day relates to any Eurocurrency Rate
Loan, a day on which dealings are carried on in the London interbank market for
deposits in the currency in which such Loan is denominated; and, if the
applicable Business Day relates to a day on which any amount is to be paid or
made available in an Alternative Currency, any day on which commercial banks
and foreign exchange markets are open for business and are not required or
authorized by law to close in New York, London and the principal financial
center for such Alternative Currency.
"CAPITALIZED LEASE OBLIGATIONS" means with respect to AMS and its
Subsidiaries, taken on a consolidated basis, the amount determined in
accordance with GAAP which represents the capitalized value of leases which
appears on the liability side of a balance sheet as part of the Financial
Statements.
"CLOSING AND CLOSING DATE" means the first Business Day on which all of
the conditions precedent set forth in Section 7.1 shall have been met.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor statute, including (unless the context otherwise
requires) any rules or regulations promulgated thereunder, in each case as in
effect from time to time. Reference to Sections of the Code shall be construed
to also refer to any successor Sections.
"COMMITMENT" means each Lender's individual obligation to make Revolving
Credit Loans and to acquire participations in Letters of Credit in a principal
amount not to exceed the U.S. dollar amount shown on the signature pages
opposite its name, as such amount may be reduced from time to time pursuant to
Sections 2.11 and 13.13.
"COMMITMENT PERCENTAGE" means the percentage that the Commitment of each
Lender bears to the Aggregate Commitments, which percentage is shown on the
signature pages opposite the name of each Lender, as such percentages may be
adjusted from time to time as provided in Section 13.13(a).
"COMPETITIVE BID BORROWING REQUEST" means the borrowing request provided
for in Section 2.6(a) in the form of Exhibit C hereto.
"COMPETITIVE BID LOAN" means a Loan made pursuant to Section 2.6.
"COMPETITIVE BID NOTE" means the promissory note in substantially the
form of Exhibit G hereto, executed and delivered by AMS, payable to the order
of a Lender and evidencing the Competitive Bid Loans.
"DEBT" of any Person means all obligations, contingent or otherwise
which, in accordance with GAAP, should be classified upon such Person's balance
sheet as liabilities or
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disclosed in footnotes thereto, but in any event including liabilities secured
by any lien existing on property owned or acquired by such Person or a
Subsidiary thereof (whether or not the liability secured thereby shall have
been assumed) and obligations which have been or under GAAP should be
capitalized for financial accounting purposes, and excluding operating leases.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments, or similar
debtor relief Laws from time to time in effect affecting the rights of
creditors generally.
"DEFAULT CONDITION" means the occurrence of any event, condition, act or
omission which, after satisfaction of any requirement for the giving of notice
or the lapse of time, or the happening of any other condition, or any
determination by the Required Lenders, or any combination of the foregoing,
would, unless cured or waived, become an Event of Default.
"DEFAULT RATE" means (a) with respect to any Base Rate Loan, a
fluctuating interest rate per annum equal to the Prime Rate, plus two percent
(2%); and (b) with respect to any Eurocurrency Rate Revolving Credit Loan or
Competitive Bid Loan, the sum of two percent (2%) per annum plus the rate of
interest in effect thereon at the time of the occurrence of an Event of Default
until the end of the Interest Period applicable thereto, and thereafter, a
fluctuating interest rate per annum equal to the Prime Rate plus two percent
(2%); and (c) with respect to any Term Loan, the sum of two percent (2%) plus
the rate in effect thereon at the time of the occurrence of an Event of
Default.
"DENOMINATION DATE" means, with respect to a Eurocurrency Rate Revolving
Credit Loan or a Letter of Credit denominated in an Alternative Currency, the
date that is three Business Days before the date (i) such Loan is made,
converted, or continued as a Eurocurrency Rate Revolving Credit Loan or (ii)
such Letter of Credit is issued.
"DOCUMENTATION AGENT" has the meaning set forth on the first page hereof.
"EBILTDA" means, for any period, with respect to AMS and its
Subsidiaries, taken on a consolidated basis, earnings before interest,
operating leases, taxes, depreciation and amortization expenses, as set forth
or reflected on the most recent consolidated Financial Statements of AMS and
its consolidated Subsidiaries prepared in accordance with GAAP (except in the
case of interim statements as to the absence of footnotes) and delivered to the
Administrative Agent in accordance with Section 6.1(a).
"EBITDA" means, for any period, with respect to AMS and its Subsidiaries,
taken on a consolidated basis, earnings before interest, taxes, depreciation
and amortization expenses, as set forth or reflected on the most recent
consolidated Financial Statements of AMS and its consolidated Subsidiaries
prepared in accordance with GAAP (except in the case of interim statements as
to the absence of footnotes) and delivered to the Administrative Agent in
accordance with Section 6.1(a).
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"EMPLOYEE PLAN" means an employee benefit plan or other plan covered by
Title IV of ERISA and maintained in whole or in part for employees of AMS or
any of its Subsidiaries, including any such plan of an ERISA Affiliate.
"EQUIVALENT ALTERNATIVE CURRENCY AMOUNT" means, with respect to an amount
of LC Currency on any Business Day at approximately 11:00 A.M., the amount of
Borrower Currency that may be purchased from such amount of LC Currency at the
Spot Exchange Rate on such date.
"EQUIVALENT U.S. DOLLAR AMOUNT" means, with respect to an amount of any
Alternative Currency on any Business Day at approximately 11:00 A.M., the
amount of U.S. Dollars that may be purchased from such amount of Alternative
Currency at the Spot Exchange Rate on such date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute, including (unless the
context otherwise requires) any rules or regulations promulgated thereunder.
"ERISA AFFILIATE" means any Person which is a member of the same
"controlled group of corporations" as AMS or any Person under "common control"
with AMS within the meaning of Section 414 of the Code.
"EUROCURRENCY RATE" means, with respect to any Eurocurrency Rate
Revolving Credit Loan for the Interest Period applicable thereto, a simple per
annum interest rate determined pursuant to the following formula:
Eurocurrency Rate = Interbank Offered Rate
-----------------------------------
1 - Eurocurrency Reserve Percentage
The Eurocurrency Rate shall be adjusted automatically as of the effective date
of any change in the Eurocurrency Reserve Percentage.
"EUROCURRENCY RATE REVOLVING CREDIT LOAN" means any Revolving Credit Loan
which bears interest at the time in question based on the Eurocurrency Rate.
"EUROCURRENCY RESERVE PERCENTAGE" means, for any day, that percentage
(expressed as a decimal) which is in effect from time to time, under Regulation
D of the Board of Governors of the Federal Reserve System, as such regulation
may be amended from time to time, or any successor regulation, as the maximum
reserve requirement (including, without limitation, any basic, supplemental,
emergency, special, or marginal reserves) applicable to any member of the
Federal Reserve System with respect to Eurocurrency liabilities as that term is
defined in Regulation D, or against any other category of liabilities that
includes deposits by reference to which the interest rate of Eurocurrency Rate
Revolving Credit Loans is determined, whether or not any Lender has any such
Eurocurrency liabilities subject to such reserve requirement at that time.
Eurocurrency Rate Revolving Credit Loans shall be deemed to constitute
Eurocurrency liabilities and, as such, shall be deemed subject to reserve
requirements without benefits of credits for proration, exceptions or offsets
that may be available from time to time to any Lender.
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"EXISTING LETTER OF CREDIT" has the meaning set forth in Section 2.10(a)
hereof.
"EXISTING NATIONSBANK CREDIT AGREEMENT" means the Second Amended and
Restated Multi-Currency Revolving Credit and Term Loan Agreement dated as of
May 10, 1996 by and between NationsBank and the Borrowers.
"EXISTING WACHOVIA CREDIT AGREEMENT" means the Revolving Credit and Term
Loan Agreement dated as of August 1, 1994 by and between AMS and Wachovia, as
amended.
"EVENT OF DEFAULT" means any of the events or conditions described in
Article 8 hereof.
"FACILITY FEE" has the meaning set forth in Section 2.12(a) hereof.
"FEDERAL FUNDS RATE" means, for any day, the simple interest rate per
annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day in the daily statistical release designated as the
composite 3:30 P.M. Quotations for U.S. Government Securities, or any
successor publication, under the caption Federal Funds Effective Rate,
provided, that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate
quoted to the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.
"FINANCIAL STATEMENTS" means, as may be applicable, balance sheets,
statements of income, cash flow statements, and statements of changes in
stockholders' equity.
"GAAP" means generally accepted accounting principles in the United
States of America, as in effect from time to time.
"GOVERNMENTAL AUTHORITY" means any government or political subdivision or
any agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.
"GUARANTY" means the guaranty of AMS contained in Article 12 hereof.
"GUARANTOR" means AMS.
"HIGHEST LAWFUL RATE" means the maximum lawful rate of interest (or, if
the context so requires, an amount calculated at such rate) which a Lender is
allowed to contract for, charge, take, reserve or receive under applicable Law.
"INTERBANK OFFERED RATE" means, with respect to any Eurocurrency Rate
Revolving Credit Loan for the Interest Period applicable thereto, the rate of
interest per annum determined by the Administrative Agent to be the rate of
interest per annum for deposits in the currency in which such Loan is
denominated for a period equal to the relevant Interest Period quoted on
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Telerate, page 3740 or 3750, as the case may be, at or about 11:00 A.M., London
time, on the second Business Day before the commencement of such Interest
Period. If no such quotations are available, the Interbank Offered Rate shall
be determined by the Administrative Agent to be the arithmetic mean, rounded
upward if necessary, to the nearest 1/100th of one percent of the respective
rates of interest per annum notified to the Administrative Agent by the
Reference Banks as the rate of interest (rounded upward to the nearest 1/100th
of one percent) at which deposits in the currency in which such Loan is
denominated in an amount approximately equal to the aggregate amount of such
Loan requested to be borrowed, and having a maturity equal to such Interest
Period, are offered to major banks in the London interbank market at or about
11:00 A.M., London time, on the second Business Day before (and for value on)
the commencement of such Interest Period, provided, however, that if the day on
which quotations would ordinarily be given in the London interbank market for
deposits in the applicable currency is not the second Business Day before the
commencement of the Interest Period for value on the commencement of such
Interest Period, then the Interbank Offered Rate will be determined at or about
11:00 A.M., London time, on the day on which quotations would normally be given
for such applicable currency for value on the commencement of such Interest
Period.
"INTEREST AND LEASE CHARGES" means, for any period, the sum of the
interest expenses and all payment obligations under all operating leases and
rental agreements set forth or reflected on the most recent consolidated
Financial Statements of AMS and its consolidated Subsidiaries prepared in
accordance with GAAP (except in the case of interim statements as to the
absence of footnotes) and delivered to the Administrative Agent in accordance
with Section 6.1(a).
"INTEREST PERIOD" means (a) in connection with any Eurocurrency Rate
Revolving Credit Loan denominated in U.S. Dollars, the period beginning on the
date such Loan is made or continued as or converted to a Eurocurrency Rate
Revolving Credit Loan and ending one, three or six months thereafter, as
Borrower may elect; (b) in connection with any Eurocurrency Rate Revolving
Credit Loan denominated in an Alternative Currency, the period beginning on the
date such Loan is made or continued as or converted to a Eurocurrency Revolving
Credit Rate Loan and ending one or three months thereafter, as Borrower may
elect; and (c) as to any Competitive Bid Loan, each period specified by a
Borrower for such Competitive Bid Loan in the related Competitive Bid Borrowing
Request delivered pursuant to Section 2.6(a)(i). Notwithstanding the
foregoing, (i) any applicable Interest Period which would otherwise end on a
day which is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day; (ii)
any applicable Interest Period which begins on a day for which there is no
numerically corresponding day in the calendar month during which such Interest
Period is to end shall (subject to clause (i) hereof) end on the last day of
such calendar month; and (iii) no Interest Period shall extend beyond the
Revolving Credit Termination Date.
"LC CURRENCY" means the Alternative Currency in which a Letter of Credit
is denominated.
"LC SUBFACILITY" has the meaning set forth in Section 2.10(b) hereof.
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"LAW" means any law (including common law), constitution, statute,
treaty, convention, regulation, rule, ordinance, order, injunction, writ,
decree or award of any Governmental Authority.
"LENDING OFFICE" means, as to each Lender, its office located at its
address set forth on the signature pages hereof (or identified on the signature
pages hereof as its Lending Office) for either Eurocurrency Revolving Credit
Loans or Base Rate Loans or such other office as such Lender may hereafter
designate as its Lending Office by notice to the Borrowers and the
Administrative Agent.
"LETTER OF CREDIT" means any documentary letter of credit or any standby
letter of credit issued by the Administrative Agent for the account of a
Borrower pursuant to Section 2.10 hereof.
"LETTER OF CREDIT FEE" has the meaning set forth in Section 2.12(b)
hereof.
"LETTER OF CREDIT PARTICIPANT" has the meaning set forth in Section
2.10(h) hereof.
"LOAN" means a Revolving Credit Loan, a Swingline Loan, a Competitive Bid
Loan or a Term Loan.
"LOAN DOCUMENTS" means this Agreement, a Revolving Credit Note, the
Swingline Note, a Competitive Bid Note, a Term Loan Note and any and all other
documents, instruments, certificates and agreements executed and/or delivered
by a Borrower, any of its Subsidiaries or any other Person in connection
herewith or therewith or relating to the Loans, or any one, more, or all of the
foregoing, as the context shall require, as amended, modified or supplemented
from time to time.
"MARGIN STOCK" means "margin stock" as defined in Regulation G, T, U or X
of the Board of Governors of the Federal Reserve System, as in effect from time
to time, together with all official rulings and interpretations issued
thereunder.
"MATERIAL DEBT" has the meaning set forth in Section 8.1(e) hereof.
"MATERIALLY ADVERSE EFFECT" means (a) a material adverse effect on the
business, operations or condition (financial or otherwise) of AMS and its
Subsidiaries (taken as a whole), (b) a material adverse affect on the ability
of AMS or any other Person to perform or comply with any of the terms or
conditions of any Loan Document to which it is a party, or (c) a material
adverse affect on the legality, validity, binding effect, enforceability or
admissibility into evidence of any Loan Document or the ability of any Lender
to enforce any rights or remedies under or in connection with any Loan
Document.
MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA or Section 414(f) of the Code.
"NATIONSBANK" means NationsBank, N.A.
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"NET WORTH" means, with respect to AMS and its consolidated
Subsidiaries, all amounts which, in conformity with GAAP, would be included in
shareholders' equity on a consolidated balance sheet.
"NOTICE OF BORROWING" means a notice in substantially the form of Exhibit
A hereto with respect to a proposed Revolving Credit Loan or a proposed
Swingline Loan, or telephonic notice given pursuant to Section 2.3(c) herein.
"NOTICE OF CONTINUATION/CONVERSION" means a notice in substantially the
form of Exhibit B hereto with respect to a proposed continuation or conversion
of a Revolving Credit Loan or telephonic notice pursuant to Section 2.4(c)
hereof.
"NOTE" means a Revolving Credit Note, the Swingline Note, a Competitive
Bid Note or a Term Note; and "NOTES" means all such Notes.
"OBLIGATIONS" means (a) each Borrower's obligations in respect of the due
and punctual payment of principal of and interest on the Loans when and as due
whether at maturity, by acceleration or otherwise, and (b) all fees, expenses,
indemnities, reimbursements and other obligations, monetary or otherwise, of
the Borrowers under this Agreement or any other Loan Document.
"PARTICIPANT" has the meaning set forth in Section 13.13(e) hereof.
"PARTICIPATING LENDER" has the meaning set forth in Section 2.6(a)(v)
hereof.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERSON" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, joint ventures, associations,
companies, trusts, banks, trust companies, land trusts, insurance trusts or
other organizations, whether or not legal entities, and governments and
agencies and political subdivisions thereof.
"PREPAID INSTALLMENT" has the meaning set forth in Section 4.5(b) hereof.
"PREPAYMENT COST" has the meaning set forth in Section 4.5(b) hereof.
"PRIME RATE" means the per annum rate of interest established from time
to time by the Administrative Agent at its principal office as its Prime Rate.
Any change in the interest rate resulting from a change in the Prime Rate shall
become effective as of 12:01 A.M. of the Business Day on which each change in
the Prime Rate is announced by the Administrative Agent. The Prime Rate is a
reference used by the Administrative Agent in determining interest rates on
certain loans and is not intended to be the lowest rate of interest charged on
any extension of credit to any debtor.
"PROHIBITED TRANSACTION" means any "prohibited transaction" within the
meaning of Section 406 of ERISA or Section 4975 of the Code.
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"REFERENCE BANKS" means Wachovia Bank of North Carolina, N.A. and
NationsBank, N.A.
"REFERENCE SECURITY" has the meaning set forth in Section 4.5(b) hereof.
"REPORTABLE EVENT" has the meaning specified therefor in Title IV of
ERISA.
"REQUIRED LENDERS" means, at any time, Lenders having at least 66 2/3% of
the sum of (i) the Aggregate Commitments plus (ii) the principal amount of the
Term Loans; and if the Aggregate Commitments are no longer in effect, Lenders
holding at least 66 2/3% of the aggregate outstanding principal amount of the
Notes.
"REVOLVING CREDIT LOAN" means any loan made to any Borrower pursuant to
Section 2.1 hereof, and "REVOLVING CREDIT LOANS" means all such loans.
"REVOLVING CREDIT NOTE" means (i) with respect to AMS, the promissory
note in substantially the form of Exhibit D hereto, executed and delivered by
AMS, payable to the order of a Lender and evidencing the Revolving Credit
Loans; and (ii) with respect to each Borrower other than AMS, the promissory
note in substantially the form of Exhibit E hereto, executed and delivered by
such Borrower, payable to the order of a Lender and evidencing the Revolving
Credit Loans.
"REVOLVING CREDIT TERMINATION DATE" means the earlier to occur of (a)
December 24, 2001, and any and all extensions or renewals thereof, and (b) the
date on which the Aggregate Commitments shall be terminated pursuant to Section
2.11 or Section 9.1 hereof.
"SPOT EXCHANGE RATE" means, on any Business Day, (a) with respect to any
calculation of the Equivalent U.S. Dollar Amount of any Alternative Currency,
the spot rate at which U.S. Dollars are offered on such day by the
Administrative Agent in the London foreign exchange market for such Alternative
Currency; or (b) with respect to any calculation of the Equivalent Alternative
Currency Amount of any LC Currency , the spot rate at which any Borrower
Currency is offered on such day by the Administrative Agent in the London
foreign exchange market for such LC Currency.
"SUBSIDIARY" means, as to any Person, (a) any corporation of which fifty
percent (50%) or more of the outstanding stock having ordinary voting power to
elect a majority of its board of directors (or other governing body),
regardless of the existence at the time of a right of the holders of any class
or classes (however designated) of securities of such corporation to exercise
such voting power by reason of the happening of any contingency, or any
partnership of which fifty percent (50%) or more of the outstanding general
partnership interests is, at the time, owned by such Person, or by one or more
Subsidiaries of such Person, or by such Person and one or more Subsidiaries of
such Person. Unless otherwise qualified, all references to "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
Borrower or a Subsidiary or Subsidiaries of such Subsidiary or Subsidiaries.
"SWINGLINE LOANS" means the Loans made pursuant to Section 2.2(a)
hereof.
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"SWINGLINE NOTE" means the promissory note in substantially the form of
Exhibit F hereto, executed and delivered by AMS, payable to the order of
Wachovia and evidencing Swingline Loans.
"TAXES" means all taxes, assessments, fees, levies, imposts, duties,
deductions, withholdings, or other charges of any nature whatsoever from time
to time or at any time imposed by any Law or Governmental Authority.
"TERM LOAN" means any loan made to AMS pursuant to Section 3.1 hereof,
and "TERM LOANS" means all such loans.
"TERM LOAN CLOSING DATE" means the date on which the principal amount of
the Term Loans is advanced by each Term Loan Lender to AMS, but not later than
Januarey 6, 1997.
"TERM LOAN LENDER" has the meaning set forth in Section 3.1 hereof.
"TERM LOAN MATURITY DATE" means the day which falls on the seventh
anniversary of the Term Loan Closing Date.
"TERM LOAN NOTE" means the promissory note in substantially the form of
Exhibit H hereto, executed and delivered by AMS, payable to the order of a Term
Loan Lender and evidencing a Term Loan.
"TOTAL CAPITALIZATION" means, with respect to AMS and its Subsidiaries,
taken on a consolidated basis the sum of (i) Net Worth plus the value of any
treasury stock held by AMS (not to exceed $75,000,000) and (ii) Total Debt.
"TOTAL DEBT" means, with respect to AMS and its Subsidiaries, taken on a
consolidated basis, the sum of the amounts (without duplication) of (i) all
indebtedness for borrowed money, (ii) all obligations evidenced by bonds,
debentures, notes or similar instruments, (iii) all obligations to pay the
deferred purchase price of property or services, exclusive of trade accounts
and accounts payable, (iv) all Capitalized Lease Obligations and (v) all direct
or indirect guaranties of any such obligations of third parties (other than the
Obligations) and all standby letters of credit issued for the account of any of
them.
"TYPE OF LOAN" means, with respect to a Revolving Credit Loan, a Base
Rate Revolving Credit Loan or a Eurocurrency Rate Revolving Credit Loan.
"UNPAID DRAWING" has the meaning set forth in Section 2.10(f) hereof.
"U.S. DOLLARS" AND THE SIGN "$" means United States Dollars or such coin
or currency of the United States of America as at the time of payment shall be
legal funds for the payment of public and private debts in the United States of
America.
"WACHOVIA" means Wachovia Bank of North Carolina, N.A.
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SECTION 1.2 ACCOUNTING TERMS; GAAP. All terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time.
SECTION 1.3 OTHER REFERENTIAL PROVISIONS.
(a) All terms in this Agreement, the Exhibits and Schedules
hereto shall have the same defined meanings when used in any other Loan
Documents, unless the context shall require otherwise.
(b) All personal pronouns used in this Agreement, whether used
in the masculine, feminine or neuter gender, shall include all other genders;
the singular shall include the plural, and the plural shall include the
singular.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provisions of this Agreement.
(d) Titles of Articles and Sections in this Agreement are for
convenience only, do not constitute part of this Agreement and neither limit
nor amplify the provisions of this Agreement, and all references in this
Agreement to Articles, Sections, Subsections, paragraphs, clauses, subclauses,
Schedules or Exhibits shall refer to the corresponding Article, Section,
Subsection, paragraph, clause, subclause, Schedule or Exhibit attached to this
Agreement, unless specific reference is made to the articles, sections or other
subdivisions or divisions of such Schedule or Exhibit to or in another document
or instrument.
(e) Each definition of a document in this Agreement shall
include such document as amended, modified, or supplemented from time to time
in accordance with the terms of this Agreement.
(f) Except where specifically restricted, reference to a party
to a Loan Document includes that party and its successors and assigns permitted
hereunder or under such Loan Document.
(g) Unless otherwise specifically stated, whenever a time is
referred to in this Agreement or in any other Loan Document, such time shall be
the local time in Atlanta, Georgia.
SECTION 1.4 EXHIBITS AND SCHEDULES. All Exhibits and Schedules
attached hereto are by reference made a part hereof.
ARTICLE 2
REVOLVING CREDIT LOAN FACILITY
SECTION 2.1 REVOLVING CREDIT LOANS.
(a) Upon the terms and subject to the conditions of, and in
reliance upon the representations and warranties made under, this Agreement,
each Lender severally and not jointly agrees to make Revolving Credit Loans to
each Borrower in an aggregate principal
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amount not to exceed its Commitment Percentage of (i) the Aggregate Commitments
minus (ii) the sum of (x) the aggregate principal amount of all Loans (other
than the Term Loans and any Swingline Loans which are repaid with the proceeds
of such Revolving Credit Loans) outstanding to all of the Borrowers, (y) the
stated amounts of all Letters of Credit outstanding for the account of all
Borrowers and (z) the amount of all Unpaid Drawings, if any, then outstanding.
The Revolving Credit Loans will be made from time to time on any Business Day
during the period from the Closing Date to but excluding the Revolving Credit
Termination Date, and, subject to the limits set forth herein, at such times
and in such amounts as Borrower may request, which amounts may be borrowed,
repaid and, to but excluding the Revolving Credit Termination Date, reborrowed.
(b) The aggregate principal amount of each borrowing of Base
Rate Revolving Credit Loans shall not be less than (i) $1,000,000 or (ii) an
aggregate principal amount equal to the remaining balance of the available
Aggregate Commitments, and if greater, shall be in integral multiples of
$500,000, and the aggregate principal amount of each borrowing of Eurocurrency
Rate Revolving Credit Loans shall not be less than $1,000,000, and if greater,
shall be in integral multiples of $500,000, except that, in any event,the
aggregate principal amount of each borrowing of Eurocurrency Rate Revolving
Credit Loans denominated in Canadian Dollars, Swedish Krona, Australian
Dollars, and Spanish Pesetas shall not be less than $8,000,000, and if greater,
shall be in integral multiples of $500,000. The aggregate principal amount of
Revolving Credit Loans denominated in an Alternative Currency shall, for
purposes of Sections 2.1(a) and (b) hereof, be deemed to be in an amount equal
to the Equivalent U.S. Dollar Amount of such Loans determined as of the
Denomination Date. Revolving Credit Loans shall be made ratably by the Lenders
in accordance with their respective Commitment Percentages, provided, however,
that the failure of any Lender to make any Loan shall not relieve any other
Lender of the obligation to lend hereunder.
(c) Each Revolving Credit Loan to AMS may be either a Base
Rate Revolving Credit Loan denominated in U.S. Dollars or a Eurocurrency Rate
Revolving Credit Loan denominated in U.S. Dollars. Subject to Sections 4.2 and
4.3, each Revolving Credit Loan to a Borrower other than AMS shall be a
Eurocurrency Rate Revolving Credit Loan denominated in the Borrower Currency.
No Borrower shall be entitled to any borrowing which, if made, would result in
more than five Eurocurrency Rate Revolving Credit Loans outstanding to such
Borrower at any one time or more than fifteen Eurocurrency Rate Revolving
Credit Loans outstanding to all Borrowers at any one time. For purposes of the
foregoing, Eurocurrency Rate Revolving Credit Loans having different Interest
Periods, regardless of whether they commence on the same day, shall be
considered separate Loans.
(d) Upon receipt of a Notice of Borrowing of Revolving Credit
Loans, the Administrative Agent shall promptly notify each Lender by telephone,
telex, or telecopy of the contents thereof, the amount of such Lender's portion
of such Loan and the Type of Loan. In the case of a Notice of Borrowing for a
Base Rate Loan which is received by the Administrative Agent prior to 11:00
A.M., Atlanta, Georgia time, the Agent shall provide such notice to each Lender
not later than 12:00 NOON, Atlanta, Georgia time. Subject to the satisfaction
of all conditions precedent thereto as set forth herein, each Lender shall, not
later than 2:00 P.M.,
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Atlanta, Georgia time, on the date specified in the Notice of Borrowing,
deposit to the Administrative Agent's Account, in federal or other immediately
available funds, such Lenders' ratable share of such Loan. Unless the
Administrative Agent shall have received notice from a Lender prior to the date
of any Loan that such Lender will not make available to the Administrative
Agent such Lender's ratable portion of such Loan, the Administrative Agent may
assume that such Lender has made such portion available to the Administrative
Agent on the date of such Loan in accordance with this Section 2.1(d), and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent such
Lender shall not have made such ratable portion available to the Administrative
Agent, such Lender and the Borrower severally agree to repay to the
Administrative Agent forthwith on demand (but without duplication) such
corresponding amount together with interest thereon for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent (i) with respect to the Borrower, at the
interest rate applicable at the time the Type of Loan is chosen, or (ii) with
respect to the Lender, at the Federal Funds Rate. Such payment by the
Borrower, however, shall be without prejudice to the rights against such
Lender. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
ratable share of the Loan for purposes of this Agreement, which Loan shall be
deemed to have been made by such Lender on the borrowing date applicable
thereto, but without prejudice to the Borrower's rights against such Lender.
SECTION 2.2 SWINGLINE LOANS.
(a) Upon the terms and subject to the conditions of, and in
reliance upon the representations and warranties made under, this Agreement,
Wachovia agrees to make a loan or loans to AMS (each a "Swingline Loan" and
collectively, the "Swingline Loans"), which Swingline Loans (i) shall bear
interest at a rate per annum equal to the sum of the Federal Funds Rate for
each day on which such Loan is outstanding plus .50%; (ii) may be repaid and
reborrowed in accordance with the provisions hereof; (iii) shall not exceed in
aggregate principal amount at any time outstanding, the amount of the Aggregate
Commitment minus (A) the aggregate principal amount of all Revolving Credit
Loans and Competitive Bid Loans outstanding to all of the Borrowers, (B) the
stated amounts of all Letters of Credit outstanding for the account of all
Borrowers and (C) the amount of all Unpaid Drawings, if any, then outstanding;
(iv) shall not exceed $15,000,000 in aggregate principal amount at any time
outstanding; and (v) Wachovia will not make a Swingline Loan after it has
received written notice from the Required Lenders that a Default Condition or
Event of Default exists.
(b) On any Business Day, Wachovia may, in its sole discretion,
give notice to the Administrative Agent, the Lenders (other than Wachovia) and
AMS that its outstanding Swingline Loans shall be funded with a borrowing of
Revolving Credit Loans (provided that each such notice shall be deemed to have
been automatically given upon the occurrence of an Event of Default), and
Wachovia shall, in any event, not later than the third Business Day after any
borrowing of a Swingline Loan, fund such outstanding Swingline Loan with a
borrowing of Revolving Credit Loans, in which case a borrowing of Revolving
Credit Loans constituting Base Rate Loans shall be made on the immediately
succeeding Business Day by all of the Lenders pro
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rata based upon each Lender's Commitment Percentage, and the proceeds thereof
shall be applied directly to repay Wachovia for such outstanding Swingline
Loans. Each Lender hereby irrevocably agrees to make Base Rate Loans upon one
Business Day's notice in the amount and in the manner specified in the
preceding sentence and on the date specified in writing by the Administrative
Agent notwithstanding (i) that the amount of such borrowing may not comply with
the minimum borrowing amounts otherwise required hereunder, (ii) whether any
conditions specified in Section 7.2 are then satisfied, (iii) whether a Default
Condition or Event of Default has occurred and is continuing, (iv) the date of
such borrowing and (v) any reduction in the Aggregate Commitments after any
such Swingline Loans were made. In the event that any borrowing pursuant to
this Section 2.2(b) cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the commencement
of a proceeding under the Bankruptcy Code in respect of AMS), each Lender
(other than Wachovia) hereby agrees that it shall forthwith purchase from
Wachovia (without recourse or warranty) such assignment of the outstanding
Swingline Loans as shall be necessary to cause the Lenders to share in such
Swingline Loans ratably based upon their respective Commitment Percentages,
provided, that all interest payable on the Swingline Loans shall be for the
account of Wachovia until the date the respective assignment is purchased and,
to the extent attributable to the purchased assignment, shall be payable to the
Lender purchasing same from and after such date of purchase.
SECTION 2.3 PROCEDURE FOR REVOLVING CREDIT LOANS AND SWINGLINE LOANS.
(a) Whenever a Borrower desires to borrow a Revolving Credit
Loan hereunder, it shall deliver to the Administrative Agent an irrevocable
Notice of Borrowing on or before (i) the proposed borrowing date with respect
to a Base Rate Revolving Credit Loan, and (ii) at least three Business Days
before the proposed borrowing date with respect to a Eurocurrency Rate
Revolving Credit Loan, each such notice to be given prior to 11:00 A.M.,
Atlanta, Georgia time, on the date specified. The Notice of Borrowing shall
specify (i) the proposed borrowing date, (ii) the amount of the Revolving
Credit Loan, (iii) the Type of Loan, (iv) with respect to a Eurocurrency Rate
Revolving Credit Loan, the initial Interest Period to be applicable thereto and
(v) in the case of a Borrower other than AMS, the applicable Alternative
Currency. Each Notice of Borrowing shall be signed by a representative of such
Borrower duly designated to give such notice pursuant to appropriate corporate
authority, and such Borrower shall notify the Administrative Agent in writing
of the names of such representatives and shall provide the Administrative Agent
with specimen signatures of such representatives in the form of an
authorization matrix (attached, as supplemented or modified by AMS from time to
time, as Attachment A). The Administrative Agent shall be entitled to rely
conclusively on such representative's authority to request Revolving Credit
Loans on behalf of Borrower until the Administrative Agent receives from
Borrower written notice to the contrary. The Administrative Agent shall have
no duty to verify the authenticity of the signature appearing on any Notice of
Borrowing, but the Administrative Agent shall have a duty to inspect any Notice
of Borrowing for facial conformity to the authorization matrix.
(b) Whenever AMS desires to borrow a Swingline Loan hereunder,
it shall deliver to the Administrative Agent an irrevocable Notice of Borrowing
not later than 12:00
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NOON, Atlanta, Georgia time, on the proposed borrowing date. The Notice of
Borrowing shall specify (i) the date of such borrowing and (ii) the amount of
the Swingline Loan.
(c) In lieu of delivering a Notice of Borrowing pursuant to
Sections 2.3(a) and (b) hereof, Borrower may give the Administrative Agent
telephonic notice by the required time of the proposed borrowing; provided,
that such notice shall be promptly confirmed in writing by delivery to the
Administrative Agent of a Notice of Borrowing. The Administrative Agent shall
be entitled to rely upon any telephonic notice referred to above which the
Administrative Agent believes in good faith to have been given by a duly
authorized representative of Borrower, or for otherwise acting in good faith
under this Section 2.3.
SECTION 2.4 CONTINUATION AND CONVERSIONS.
(a) Subject to Sections 4.2 and 4.3 hereof, AMS shall have the
option, from time to time, to elect to convert or continue the Type of Loan as
follows:
(i) if such Revolving Credit Loan is a Base Rate Loan,
AMS may elect, as of any Business Day, to convert such Loan or a
portion thereof to a Eurocurrency Rate Revolving Credit Loan;
and
(ii) if such Revolving Credit Loan is a Eurocurrency
Rate Revolving Credit Loan, AMS may elect to change such Loan or
a portion thereof to a Base Rate Loan, or may elect to continue
such Loan or a portion thereof as a Eurocurrency Rate Revolving
Credit Loan for an additional Interest Period, in each case
beginning on the last day of the then current Interest Period
applicable to such Loan; provided, that (A) any election of a
Eurocurrency Rate Revolving Credit Loan is subject to there
being no Default Condition or Event of Default then in existence
and (B) no conversion shall reduce the outstanding principal
amount of a Eurocurrency Rate Revolving Credit Loan below
$1,000,000.
(b) Subject to Sections 4.2 and 4.3 hereof, a Borrower other
than AMS shall have the option, upon the expiration of any Interest Period
applicable to a Eurocurrency Rate Revolving Credit Loan, to continue all or any
portion of such Loan as the same Type of Loan with the succeeding Interest
Period of such continued Revolving Credit Loan to commence on the last day of
the Interest Period of the Revolving Credit Loan to be continued, provided,
that (i) no Default Condition or Event of Default is then in existence, (ii)
the Equivalent U.S. Dollar Amount of such Loan, when aggregated with all other
Loans (other than the Term Loans) outstanding hereunder and the stated amounts
of all Letters of Credit for the account of all Borrowers and the amount of all
Unpaid Drawings, if any, then outstanding, would not exceed the Aggregate
Commitments, and (iii) the Equivalent U.S. Dollar Amount of such Loan shall not
be less than $1,000,000.
(c) Each such continuation or conversion shall be effected by
Borrower delivering to the Administrative Agent a Notice of
Continuation/Conversion at least (i) one Business Day prior to a conversion by
AMS of a Eurocurrency Rate Revolving Credit Loan to a Base Rate Loan and (ii)
in all other cases, three Business Days prior to the date of the proposed
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continuation or conversion, each such notice to be given prior to 11:00 A.M. on
the date specified. Each Notice of Continuation/Conversion shall be
irrevocable and shall specify the Type of Loan to be continued or converted and
the Interest Period to be applicable thereto. In the event no Notice of
Continuation/Conversion is delivered by a Borrower with respect to any
Eurocurrency Rate Revolving Credit Loan to such Borrower in conformity with
this Section 2.4 (c), then such Loan shall be continued as a Eurocurrency Rate
Revolving Credit Loan with an Interest Period of one month. Notwithstanding
the foregoing or the provisions of Section 2.5 hereof, if a Default Condition
or Event of Default is in existence or would result from any proposed
continuation of a Eurocurrency Rate Revolving Credit Loan, such Loan may not be
continued as a Eurocurrency Rate Revolving Credit Loan but instead shall be
automatically converted on the last day of such Interest Period into a Base
Rate Revolving Credit Loan.
(d) In lieu of delivery of a Notice of
Continuation/Conversion, Borrower may give the Administrative Agent telephonic
notice by the required time of the proposed continuation or conversion;
provided, that such notice shall be promptly confirmed in writing by delivery
to the Administrative Agent of a Notice of Continuation/Conversion. The
Administrative Agent shall be entitled to rely upon any telephonic notice
referred to above which the Administrative Agent believes in good faith to have
been given by a duly authorized representative of Borrower or for otherwise
acting in good faith under this Section 2.4.
SECTION 2.5 INTEREST PERIODS. At the time Borrower gives any Notice
of Borrowing or Notice of Continuation/Conversion in respect of the making or
continuation of a Eurocurrency Rate Revolving Credit Loan complying with the
requirements of Sections 2.3 or 2.4 hereof, Borrower shall elect the Interest
Period to be applicable to such Loan. If, upon the expiration of any Interest
Period, a Borrower has failed to elect a new Interest Period, then such
Borrower shall be deemed to have given notice of election of an Interest Period
of one month.
SECTION 2.6 COMPETITIVE BID LOANS; PROCEDURE FOR COMPETITIVE BID
BORROWINGS.
(a) Subject to the terms and conditions of this Agreement,
each Lender severally agrees that AMS may effect a borrowing of Competitive Bid
Loans denominated in U.S. Dollars from time to time on any Business Day during
the period from the Closing Date until the date occurring 30 days prior to the
Revolving Credit Termination Date in the manner set forth below, provided,
however, that at no time shall the outstanding principal amount of Competitive
Bid Loans exceed the amount of the Aggregate Commitments minus (x) the
outstanding principal amount of all Revolving Credit Loans and Swingline Line
Loans outstanding to all of the Borrowers, (y) the stated amounts of all
Letters of Credit outstanding for the account of all Borrowers and (z) the
amount of all Unpaid Drawings, if any, then outstanding.
(i) AMS may request a borrowing of Competitive Bid
Loans by giving to the Administrative Agent, at least one
Business Day prior to the date of the proposed borrowing, a
notice, which notice may be in writing or by telecopy, telex or
telegraph, or by telephone, if immediately confirmed in writing,
substantially in the form attached hereto as Exhibit C (a
"Competitive Bid
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Borrowing Request"). Each Competitive Bid Borrowing Request
shall be given to the Administrative Agent prior to 10:00 A.M.,
Atlanta, Georgia time. Each Competitive Bid Borrowing Request
shall specify the proposed date (which shall be a Business Day)
and the aggregate amount of the proposed borrowing of
Competitive Bid Loans, the proposed Interest Period for each
Competitive Bid Loan to be made as part of such borrowing, the
interest payment date or dates relating thereto, and such other
terms to be applicable to such borrowing as AMS may specify. No
borrowing of Competitive Bid Loans shall be in an aggregate
amount less than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof, or, if less, the unused amount of
the Aggregate Commitments. No Interest Period shall extend
after the Revolving Credit Termination Date. The Administrative
Agent shall promptly notify (by telex or telecopy) each Lender
of each Competitive Bid Borrowing Request received by it and the
terms contained in such request.
(ii) Each Lender shall, if, in its sole discretion, it
elects so to do, irrevocably offer to make one or more
Competitive Bid Loans to AMS as part of such proposed borrowing
at a rate or rates of interest specified by such Lender in its
sole discretion, by notifying (by telephone or telecopy, and, in
the case of telephone, immediately confirmed by telecopy) the
Administrative Agent, before 10:00 A.M., Atlanta, Georgia time,
on the proposed borrowing date of the minimum amount and maximum
amount of each Competitive Bid Loan which such Lender would be
willing to make as part of such proposed borrowing (which
amounts may, subject to the proviso to the first sentence of
this Section 2.6, exceed such Lender's Commitment), the rate or
rates of interest therefor and such Lender's applicable Lending
Office with respect to such Competitive Bid Loan. The
Administrative Agent shall notify AMS of all such offers before
10:30 A.M., Atlanta, Georgia time, on the proposed borrowing
date, provided that, if the Administrative Agent in its capacity
as a Lender shall in its sole discretion elect to make any such
offer, it shall notify AMS of such offer before 9:30 A.M.,
Atlanta, Georgia time on the proposed borrowing date. If any
Lender other than the Administrative Agent shall fail to notify
the Administrative Agent before 10:00 A.M., Atlanta, Georgia
time, and if the Administrative Agent in its capacity as a
Lender shall fail to notify AMS before 9:30 A.M., Atlanta,
Georgia time, on the proposed borrowing date, that it elects to
make such an offer, such Lender shall be deemed to have elected
not to make such an offer and such Lender shall not be obligated
to, and shall not, make any Competitive Bid Loan as part of such
borrowing. Any offer submitted after the time required above
shall be disregarded by the Administrative Agent unless such
offer is submitted to correct a manifest error in a prior offer.
(iii) AMS shall, before 11:00 A.M., Atlanta, Georgia
time, on the date of such proposed borrowing of Competitive Bid
Loans, either
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(A)cancel such Competitive Bid Borrowing Request by
notice to the Administrative Agent to that effect, or
(B)in its sole discretion, irrevocably accept one
or more of the offers made by any Lender or Lenders
pursuant to Section 2.6(a)(ii), in ascending order of the
rates offered therefor, by giving notice to the
Administrative Agent of the amount of each Competitive Bid
Loan (which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum
amount, notified to AMS by the Administrative Agent on
behalf of such Lender for such Competitive Bid Loan
pursuant to Section 2.6(a)(ii)) to be made by each Lender
as part of such borrowing, and reject any remaining offers
made by Lenders pursuant to Section 2.6(a)(ii), by giving
the Administrative Agent notice to that effect, provided,
however, that the aggregate amount of such offers accepted
by AMS shall be equal at least to $5,000,000. If offers
for Competitive Bid Loans at the same interest rate are
made by two or more Lenders for a greater aggregate
minimum principal amount than the amount in respect of
which offers for Competitive Bid Loans are accepted by AMS
at such interest rate, the principal amount of Competitive
Bid Loans accepted at such interest rate shall be
allocated by AMS among such Lenders as nearly as possible
in proportion to the respective minimum principal amounts
offered by such Lenders. No such Lender shall be
obligated to make such Competitive Bid Loan in a principal
amount less than the minimum amount offered by such Lender
without consenting to such lesser amount. If any Lender
declines to make a Competitive Bid Loan at such lesser
amount, AMS shall be entitled in its sole discretion to
determine which of such offers at the same interest rate
it shall accept.
(iv) If AMS notifies the Administrative Agent that a
Competitive Bid Borrowing Request is canceled pursuant to
Section 2.6(a)(iii)(A), the Administrative Agent shall give
prompt notice (by telex or telecopy) thereof to the Lenders and
such borrowing shall not be made.
(v) If AMS accepts one or more of the offers made by
any Lender or Lenders pursuant to Section 2.6(a)(iii)(B), the
Administrative Agent shall, as promptly as practicable on the
proposed borrowing date, notify (A) each Lender that has made an
offer as described in Section 2.6(a)(ii), of aggregate amount of
such borrowing and whether any offer or offers made by such
Lender pursuant to Section 2.6(a)(ii) have been accepted by AMS
and (B) each Lender that is to make a Competitive Bid Loan as
part of such borrowing (a "Participating Lender" with respect to
such borrowing), of the amount of each Loan to be made by such
Lender as part of such borrowing, together with a specification
of the interest rate and interest payment date or dates in
respect of each such Competitive Bid Loan. Each such
Participating Lender shall, not later than 12:00 NOON, Atlanta,
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Georgia time, on the date specified in such Competitive Bid
Borrowing Request deposit to the Administrative Agent's Account,
in federal or other immediately available funds, such Lender's
portion of such borrowing. Upon satisfaction of the applicable
terms and conditions of this Agreement and after receipt by the
Administrative Agent of such amount from each such Participating
Lender, the Administrative Agent will make such amount available
on such date to AMS. Unless the Administrative Agent shall have
received prior notice from a Participating Lender (by telephone
or otherwise, such notice to be promptly confirmed by telex,
telecopy or other writing) that such Participating Lender will
not make available such Participating Lender's Competitive Bid
Loan, the Administrative Agent may assume that such
Participating Lender has made such Participating Lender's
portion of such borrowing available to the Administrative Agent
on such borrowing date in accordance with this Section
2.6(a)(v), and the Administrative Agent may, in reliance upon
such assumption, make available to AMS on such borrowing date a
corresponding amount. If and to the extent such Participating
Lender shall not have made such portion available to the
Administrative Agent, such Participating Lender and AMS
severally agree to repay to the Administrative Agent forthwith
on demand (but without duplication) such corresponding amount
together with interest thereon for each day from the date such
amount is made available to AMS until the date such amount is
repaid to the Administrative Agent (x) with respect to AMS, at a
rate per annum equal to the rate of interest for such
Competitive Bid Loan accepted by AMS in its notice to the
Administrative Agent delivered pursuant to Section
2.6(a)(iii)(B), or (y) with respect to the Participating Lender,
at the Federal Funds Rate. If such Participating Lender shall
repay to the Administrative Agent such corresponding amount,
such amount so repaid shall constitute such Lender's Competitive
Bid Loan as a part of such borrowing of Competitive Bid Loans
for purposes of this Agreement, which Competitive Bid Loan shall
be deemed to have been made by such Participating Lender on the
borrowing date applicable thereto, but without prejudice to
rights of AMS against such Participating Lender.
(b) The Administrative Agent will notify each Lender of the
amount of any borrowing of Competitive Bid Loans and such Lender's new
Commitment (after giving effect to all of the Competitive Bid Loans
outstanding). After each such borrowing of Competitive Bid Loans, if requested
by any Lender, the Administrative Agent shall within a reasonable time furnish
to such Lender such information in respect of such Competitive Bid Loans as
such Lender shall reasonably request.
(c) Within the limits and on the conditions set forth in this
Section 2.6, AMS may from time to time borrow under this Section 2.6, repay
pursuant to Section 2.6(d), and reborrow under this Section 2.6.
(d) AMS shall repay to the Administrative Agent for the
account of each Participating Lender which has made a Competitive Bid Loan on
the maturity date of such Competitive Bid Loan (such maturity date being that
specified by the Company for repayment of
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such Competitive Bid Loan in the related Competitive Bid Borrowing Request
delivered pursuant to Subsection 2.6(a)(i)) the then unpaid principal amount of
such Competitive Bid Loan.
SECTION 2.7 THE NOTES. The Revolving Credit Loans to AMS shall be
evidenced by a single Revolving Credit Note dated the Closing Date denominated
in U.S. Dollars payable to the order of each Lender. The Revolving Credit Loans
to each Borrower other than AMS shall be evidenced by a single Revolving Credit
Note dated the Closing Date denominated in the Borrower Currency payable to the
order of each Lender. The Swingline Loans to AMS shall be evidenced by a
single Swingline Note dated the Closing Date denominated in U.S. Dollars
payable to the order of Wachovia. The Competitive Bid Loans to AMS shall be
evidenced by a single Competitive Bid Note dated the Closing Date denominated
in U.S. Dollars payable to the order of each Lender. Each Lender is hereby
authorized to record on a Note or on its internal records the amount and date
of each Loan, and the date and amount of each repayment of a Loan; provided,
that the failure to make any such notation or any error therein shall not
affect Borrower's obligation with respect to such Loan. Absent manifest error,
the information so recorded by Lender shall be controlling as to the intent of
the parties hereto. Each Lender will deliver a copy of all such information to
Borrower upon the reasonable written request of Borrower.
SECTION 2.8 REPAYMENT OF REVOLVING CREDIT LOANS, SWINGLINE LOANS AND
COMPETITIVE BID LOANS.
(a) The Commitment of each Lender shall terminate on the
Revolving Credit Termination Date and the aggregate unpaid principal amount of
all Revolving Credit Loans, Swingline Loans and Competitive Bid Loans, together
with all accrued and unpaid interest thereon, and all amounts payable under
this Agreement and any other Loan Document in respect of such Loans shall be
paid by each Borrower to the Administrative Agent for the account of the
Lenders on such date.
(b) If, on any Business Day, the outstanding principal amount
of all Loans (other than the Term Loans), the stated amounts of all outstanding
Letters of Credit for the account of all Borrowers and the amount of all Unpaid
Drawings, if any, then outstanding exceeds the Aggregate Commitments, each
Borrower shall, on demand, repay the U.S. Dollar amount, or if applicable, the
Equivalent U.S. Dollar Amount of Loans such that the outstanding principal
amount of all Revolving Credit Loans, Swingline Loans, Competitive Bid Loans,
and the stated amounts of all Letters of Credit for the account of all
Borrowers and the amount of all Unpaid Drawings, if any, then outstanding is
less than or equal to the amount of the Aggregate Commitments.
SECTION 2.9 INTEREST BASIS: INTEREST PAYMENT DATES.
(a) Each Borrower agrees to pay interest in respect of the
unpaid principal amount of each Revolving Credit Loan, Swingline Loan and
Competitive Bid Loan from the date
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of the relevant Loan until such Loan is paid in full and at maturity (whether
by acceleration or otherwise) and thereafter on demand at the following rates
per annum:
(i) For each day that such Loan is a Base Rate Loan,
the Base Rate applicable to such Loan for such day.
(ii) For each day that such Loan is a Swingline Loan, a
rate per annum equal to the sum of the Federal Funds Rate for
such day plus .50%.
(iii) During such period that such Loan is a Eurocurrency
Rate Revolving Credit Loan, the Eurocurrency Rate applicable to
such Loan for the related Interest Period plus the Applicable
Rate.
(iv) During such period that such Loan is a Competitive
Bid Loan, at a rate per annum accepted by AMS in its notice to
the Administrative Agent delivered pursuant to Section
2.6(a)(iii)(B).
(b) Notwithstanding the foregoing, from and after the
occurrence and during the continuance of an Event of Default, Borrower will pay
interest at the Default Rate on the principal of the Revolving Credit Loans,
the Swingline Loans, and the Competitive Bid Loans, and on any other amounts
payable by Borrower under this Agreement or the other Loan Documents (including
interest to the extent permitted by law) that is not paid on the due date
thereof. All interest provided for in this Section 2.9(b) shall be payable on
demand. The payment or acceptance of the rate provided by this Section 2.9(b)
shall not constitute a waiver of any Default Condition or Event of Default or
an amendment to this Agreement, or otherwise prejudice or limit any rights or
remedies of Lender.
(c) Interest shall accrue from and including the date of any
Revolving Credit Loan, Swingline Loan, or Competitive Bid Loan to but excluding
the date of any repayment thereof and shall be payable (i) with respect to each
Eurocurrency Rate Revolving Credit Loan or Competitive Bid Loan, on the last
day of each Interest Period applicable to such Loan, and on any prepayment
thereof (on the amount prepaid), provided, that accrued interest shall be
payable at least every three months if the applicable Interest Period exceeds
three months, (ii) with respect to each Base Rate Loan or Swingline Loan, on
the last day of each interval of one month, or three months, as selected by a
Borrower, (iii) at maturity (whether by acceleration or otherwise), and (iv)
after maturity (whether by acceleration or otherwise), on demand. All interest
payable pursuant to the terms of this Agreement shall be computed on the basis
of a year of three hundred sixty days for the actual number of days elapsed,
except with respect to interest payable on any Loan to, or any Unpaid Drawing
in respect of Letters of Credit for the account of, AMS Management Systems
U.K., Ltd., in which case interest shall be computed on the basis of a year of
three hundred sixty-five days for the actual number of days elapsed.
SECTION 2.10 LETTERS OF CREDIT.
(a) Subject to and upon the terms and conditions herein set
forth, a Borrower may request that Wachovia issue, at any time and from time to
time on or after the Closing Date
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and prior to the Revolving Credit Termination Date, for the account of the
Borrower and, subject to and upon the terms and conditions herein set forth,
Wachovia agrees to issue from time to time, Letters of Credit denominated in
U.S. Dollars or in an Alternative Currency and in such form as may be approved
by Wachovia. Notwithstanding the foregoing, Wachovia shall not be under any
obligation to issue any Letter of Credit if, at the time of such issuance:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall purport by its terms to enjoin or
restrain Wachovia from issuing such Letter of Credit or any
requirement of law applicable to Wachovia shall prohibit the
issuance of letters of credit generally or such Letter of Credit
in particular or shall impose upon Wachovia with respect to such
Letter of Credit any restriction or reserve or capital
requirement (for which Wachovia is not otherwise compensated)
not in effect on the date hereof, or any unreimbursed loss, cost
or expense which was not applicable, in effect or known to
Wachovia as of the date hereof and which Wachovia in good ▇▇▇▇▇
▇▇▇▇▇ material to it; or
(ii) Wachovia shall have received notice from the
Required Lenders prior to the issuance of such Letter of Credit
of the type described in the penultimate sentence of Section
2.10(e).
(b) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued the stated amount of which, when added to the stated amount of
outstanding Letters of Credit (exclusive of Unpaid Drawings which are repaid on
the date of, and prior to the issuance of, the respective Letter of Credit) at
such time, would exceed either (A) $15,000,000 (the "LC Subfacility") or (B)
when added to the aggregate principal amount of all Loans (other than the Term
Loans) and Unpaid Drawings, if any, then outstanding, the Aggregate
Commitments, (ii) no Letter of Credit shall be issued if any Default Condition
or Event of Default is then in existence and (iii) no Letter of Credit shall
have an expiration date occurring later than the Business Day next preceding
the Revolving Credit Termination Date.
(c) Whenever it desires that a Letter of Credit be issued, the
Borrower shall give the Administrative Agent and Wachovia written notice
thereof prior to 12:00 NOON, Atlanta, Georgia time, at least two Business Days
prior to the proposed date of issuance (which shall be a Business Day) (each a
"Letter of Credit Request"), which Letter of Credit Request shall include
Wachovia's customary application for a letter of credit containing information
necessary to issue the Letter of Credit and any other documents that Wachovia
customarily requires in connection therewith. If such application form or
other document contains any terms and conditions, such terms and conditions
shall have no force and effect, it being understood that the issuance and
payment of Letters of Credit, and all other matters between Wachovia, the
Administrative Agent, the Lenders and Borrower with respect to such Letter of
Credit and the credit relationship of Wachovia, the Administrative Agent, the
Lenders and Borrower shall be governed by this Agreement and applicable law.
The Administrative Agent shall promptly notify each Lender of each Letter of
Credit Request.
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(d) The aggregate principal amount of the Aggregate
Commitments and the LC Subfacility shall be reduced by (i) in the case of any
Letter of Credit denominated in U.S. Dollars, the stated U.S. Dollar amount of
such Letter of Credit, (ii) in the case of any Letter of Credit denominated in
a Borrower Currency, the stated Equivalent U.S. Dollar Amount of such undrawn
Letter of Credit determined as of the Denomination Date, and (iii) in the case
of any Letter of Credit denominated in an Alternative Currency which differs
from the Borrower Currency, the stated Equivalent U.S. Dollar Amount of the
Equivalent Alternative Currency Amount of such undrawn Letter of Credit
determined as of the Denomination Date.
(e) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, Section 2.10(b). Unless Wachovia has received written notice from the
Required Lenders before it issues a Letter of Credit that one or more of the
conditions specified in Section 7.2 were not then satisfied, or that the
issuance of such Letter of Credit would violate Section 2.10(b), then Wachovia
may issue the requested Letter of Credit for the account of the Borrower in
accordance with Wachovia's usual and customary practices. Wachovia shall,
promptly following the issuance of a Letter of Credit by it, give the
Administrative Agent, each Lender and the Borrower written notice of the
issuance of such Letter of Credit.
(f) The Borrower hereby agrees to reimburse Wachovia, by
making payment to Wachovia in immediately available funds, for any payment or
disbursement made by Wachovia under any Letter of Credit issued by it (each
such amount so paid or disbursed until reimbursed, an "Unpaid Drawing") no
later than one Business Day following the date of such payment or disbursement,
with interest on the amount so paid or disbursed by Wachovia, to the extent not
reimbursed prior to 1:00 P.M., Atlanta, Georgia time, on the date of such
payment or disbursement, from and including the date paid or disbursed to but
not including the date Wachovia is reimbursed therefor at a rate per annum
equal to the Base Rate as in effect from time to time (plus an additional 2%
per annum if not reimbursed by the third Business Day after the date of such
payment or disbursement), such interest also to be payable on demand. Wachovia
shall provide the Borrower prompt notice of any drawing made under any Letter
of Credit prior to any payment or disbursement made by it on account of such
drawing, although the failure of, or delay in, giving any such notice shall not
release or diminish the obligations of the Borrower under this Section 2.10(f)
or under any other Section of this Agreement.
(g) The Borrower's obligation under this Section 2.10(f) to
reimburse Wachovia with respect to Unpaid Drawings (including, in each case,
interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower may have or have had against any Lender, including,
without limitation, any defense based upon the failure of any drawing under a
Letter of Credit to conform to the terms of the Letter of Credit or any
non-application or misapplication by the beneficiary of the proceeds of such
drawing; provided, however, that the Borrower shall not be obligated to
reimburse the Administrative Agent for any wrongful payment made by the
Administrative Agent under a Letter of Credit as a result of acts or omissions
constituting gross negligence or willful misconduct on the part of Wachovia.
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(h) Immediately upon the issuance by Wachovia of any Letter of
Credit, Wachovia shall be deemed to have sold and transferred to each other
Lender, and each such Lender (each a "Letter of Credit Participant") shall be
deemed irrevocably and unconditionally to have purchased and received from
Wachovia, without recourse or warranty, an undivided interest and
participation, to the extent of such Lender's Commitment Percentage, in such
Letter of Credit, each substitute letter of credit, each drawing made
thereunder and the obligations of the Borrower under this Agreement with
respect thereto and any security therefor or guaranty pertaining thereto. Upon
any change in the Commitments or Commitment Percentages of the Lenders pursuant
to Section 13.13, it is hereby agreed that, with respect to all outstanding
Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment
to the participations pursuant to this Section 2.10(h) to reflect the new
Commitment Percentages of the assigning and assignee Lender or of all Lenders,
as the case may be.
(i) In determining whether to pay under any Letter of Credit,
Wachovia shall not have any obligation relative to the Letter of Credit
Participants other than to determine that any documents required to be
delivered under such Letter of Credit have been delivered and that they appear
to comply on their face with the requirements of such Letter of Credit. Any
action taken or omitted to be taken by Wachovia under or in connection with any
Letter of Credit if taken or omitted in the absence of gross negligence or
willful misconduct, shall not create for the Administrative Agent any resulting
liability to the Letter of Credit Participants.
(j) In the event that Wachovia makes any payment under any
Letter of Credit and the Borrower shall not have reimbursed such amount in full
to Wachovia pursuant to Section 2.10(f), Wachovia shall promptly notify the
Administrative Agent, and the Administrative Agent shall notify each Letter of
Credit Participant of such failure, and each Letter of Credit Participant shall
promptly and unconditionally pay to the Administrative Agent for the account of
Wachovia, the amount of such Letter of Credit Participant's Commitment
Percentage of such executed payment in U.S. Dollars or in Alternative Currency,
as applicable, and in same day funds; provided, however, that no Letter of
Credit Participant shall be obligated to pay to the Administrative Agent its
Commitment Percentage of such unreimbursed amount for any wrongful payment made
by Wachovia under a Letter of Credit as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of Wachovia.
If the Administrative Agent so notifies any Letter of Credit Participant
required to fund a payment under a Letter of Credit prior to 11:00 A.M.,
Atlanta, Georgia time, on any Business Day, such Letter of Credit Participant
shall make available to the Administrative Agent for the account of Wachovia
such Letter of Credit Participant's Commitment Percentage of the amount of such
payment on such Business Day in same day funds. If and to the extent such
Letter of Credit Participant shall not have so made its Commitment Percentage
of the amount of such payment available to the Administrative Agent for the
account of Wachovia, such Letter of Credit Participant agrees to pay to the
Administrative Agent for the account of Wachovia, forthwith on demand such
amount, together with interest thereon, for each day from such date until the
date such amount is paid to the Administrative Agent for the account of
Wachovia at the Federal Funds Rate. The failure of any Letter of Credit
Participant to make available to the Administrative Agent for the account of
Wachovia its Commitment Percentage of any payment under any Letter of Credit
shall not relieve any other Letter of Credit Participant of its obligation
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hereunder to make available to the Administrative Agent for the account of
Wachovia its Commitment Percentage of any payment under any Letter of Credit on
the date required, as specified above, but no Letter of Credit Participant
shall be responsible for the failure of any other Letter of Credit Participant
to make available to the Administrative Agent for the account of Wachovia such
other Letter of Credit Participant's Commitment Percentage of any such payment.
(k) Whenever Wachovia receives a payment of a reimbursement
obligation as to which Wachovia has received any payments from the Letter of
Credit Participants pursuant to clause (j) above, Wachovia shall promptly pay
to each Letter of Credit Participant which has paid its Commitment Percentage
thereof in U.S. Dollars or in Alternative Currency, as the case may be, and in
same day funds, an amount equal to such Letter of Credit Participant's
Commitment Percentage of the principal amount thereof and interest thereon
accruing after the purchase of the respective participations.
(l) Except as otherwise expressly stated herein, any Letter of
Credit issued hereunder shall be subject to the Uniform Customs and Practices
for Documentary Credits, 1993 Revision, International Chamber of Commerce
Publication No. 500 ("Uniform Customs"). As to matters not governed by the
Agreement or by the Uniform Customs, any Letter of Credit shall be construed in
accordance with and governed by the Laws of the State of New York.
(m) Borrower assumes all the risk of the misuse of the Letter
of Credit by the beneficiary thereof. Wachovia shall not be responsible for,
and Borrower's obligation to Wachovia and the Lenders shall not be affected by:
(i) any defect in a draft, payment request or other
document unless such defect is readily apparent upon the face of
the draft, payment request or other document;
(ii) the correctness or legal effect of any document
provided for in the Letter of Credit;
(iii) the use which may be made of any Letter of Credit
or for any acts or omissions of the user of any Letter of
Credit;
(iv) the validity, accuracy or genuineness of drafts,
required statements or documents, even if such drafts,
statements or documents should in fact prove to be in any or all
respects invalid, inaccurate, fraudulent or forged;
(v) errors, omissions, interruptions or delays in
transmission or delivery of any message, by mail, cable,
telegraph, telex or otherwise; or
(vi) any consequences arising from causes beyond the
control of ▇▇▇▇▇▇▇▇.
▇▇
▇▇
(▇) ▇▇▇▇▇▇▇▇ may accept any written statement provided for in
any Letter of Credit and any accompanying draft or payment request as
conclusive of the matters covered by such statement, whether of fact or law,
and any such statement shall be conclusive and binding between Borrower and
Wachovia, whether or not actually true and correct as between other persons,
and Wachovia shall not be required at any time or under any circumstances to
determine any disputed question of fact or law.
(o) If Borrower consents in writing to any overdrafts under
any Letter of Credit or authorizes in writing payment under any Letter of
Credit with irregular accompanying documents or authorizes or consents to any
departure from the terms of such Letter of Credit, this Agreement shall be
fully binding upon Borrower with respect to such overdrafts, irregularities or
both and Wachovia's rights shall be, in every respect, the same as if this
Agreement and such Letter of Credit expressly provided for such overdraft or
irregularity or both. If at the request of Borrower there is any extension of
time for presentation of any payment request or any document under a Letter of
Credit, or in the event of any modification of the terms of such Letter of
Credit or any transaction under such Letter of Credit, this Agreement shall be
fully binding upon Borrower with regard to any action taken under such modified
terms and to any payment request and documents presented within such extended
time.
(p) Any Letter of Credit can be canceled by the beneficiary
thereof only after receipt by the Administrative Agent of such Letter of
Credit, or upon such other conditions as the Administrative Agent may
prescribe. In the event of any early cancellation there will be no refund of
Letter of Credit Fees. If any Letter of Credit is expressly designated as
"transferable", and if such transfer is requested, Borrower agrees to pay
Wachovia's customary fees for such transfer.
(q) Unless a Letter of Credit expressly provides to the
contrary in writing, Borrower agrees that Wachovia shall pay, after receipt of
drafts, required statements or other documents otherwise in order which are
signed or issued by the administrator, trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, liquidator, receiver or
other such legal representative of the beneficiary of such Letter of Credit
whose status as such has been established to the satisfaction of Wachovia
(r) Schedule 2.10 hereto contains a description of all letters
of credit issued by NationsBank pursuant to the Existing NationsBank Credit
Agreement which remain outstanding on the Closing Date. Each such letter of
credit, including any extension thereof issued by NationsBank (each, an
"Existing Letter of Credit") shall constitute a "Letter of Credit" for all
purposes of this Agreement and each Lender (other than NationsBank) shall be
deemed to have purchased a participation from NationsBank in each Existing
Letter of Credit in accordance with Section 2.10 (h) on the Closing Date as if
NationsBank were Wachovia.
(s) If any Event of Default shall occur and be continuing, on
the Business Day that a Borrower receives notice from the Administrative Agent
or the Required Lenders demanding the deposit of cash collateral pursuant to
this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
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benefit of the Lenders, an amount in U.S. Dollars equal to the stated amount of
all outstanding letters of credit and, in the case of Letters of Credit
denominated in Alternative Currency, the Equivalent U.S. Dollar Amount thereof
as of such date plus any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in Sections 8.1(f) or (g). Such deposit
shall be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Investment of such deposits
shall, to the extent reasonably practicable, be made at the direction of the
Administrative Agent and at the Borrower's risk and expense. Unless invested
in accordance with the preceding sentence, such deposits shall not bear
interest. Interest or profits, if any, on such investments shall accumulate in
such account. Monies in such account shall be applied by the Administrative
Agent to reimburse Wachovia for drawings for which it has not been reimbursed
and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the undrawn Letters of Credit at
such time or, if the maturity of the Loans has been accelerated (but subject to
the consent of the Required Lenders), be applied to satisfy other obligations
of the Borrower under this Agreement. If the Borrower is required to provide
an amount of cash collateral hereunder as a result of the occurrence of an
Event of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after all Events of Default
have been cured or waived.
SECTION 2.11 TERMINATION OR REDUCTION OF COMMITMENT.
(a) AMS shall have the right, at any time and from time to
time, upon at least thirty days' prior irrevocable, written notice to the
Administrative Agent, to terminate or reduce permanently all or a portion of
the Aggregate Commitments; provided, that any such partial reduction shall be
made in increments of not less than $5,000,000, unless the Revolving Credit
Loans, Swingline Loans, Competitive Bid Loans and Unpaid Drawings are then paid
in full and the Commitments terminated. As of the date of termination or
reduction set forth in such notice, the Aggregate Commitments shall be
permanently reduced to the amount stated in AMS' notice for all purposes
herein, and each Borrower, subject to the provisions of Section 4.4 hereof,
shall pay the amount necessary to reduce the aggregate outstanding principal
amount of the Loans (other than the Term Loans), plus the amount of all Unpaid
Drawings, if any, outstanding to not more than the amount of the Aggregate
Commitments as so reduced, together with accrued interest on the amounts so
prepaid. For purposes of this Section 2.11(a), each Borrower authorizes AMS to
act in its behalf.
(b) The amount of the Aggregate Commitments shall be
automatically reduced to zero on the Revolving Credit Termination Date.
(c) The Aggregate Commitments or any portion thereof
terminated or reduced pursuant to this Section 2.11 may not be reinstated.
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SECTION 2.12 FEES.
(a) AMS shall pay to the Administrative Agent for the account
of the Lenders a facility fee ("Facility Fee") which shall accrue at a rate per
annum equal to the Applicable Rate on the daily amount of the Aggregate
Commitments (whether used or unused). The Facility Fee shall be payable in
arrears on the first day of July, October, January and April during the term
that the Aggregate Commitments are in effect.
(b) Each Borrower for the account of which a Letter of Credit
is issued hereunder shall pay to the Administrative Agent for the account of
each Lender a fee (the "Letter of Credit Fee") in U.S. Dollars on the date of
issuance of a Letter of Credit in an amount equal to the Applicable Rate per
annum times the stated amount of such Letter of Credit issued hereunder;
provided that the Administrative Agent shall rebate to such Borrower the
ratable portion of such fee attributable to the period between the date such
Letter of Credit is cancelled by mutual agreement of Wachovia and such Borrower
(other than by reason of payment in full of such Letter of Credit) and the
expiration date of such Letter of Credit. For purposes of this Section
2.12(b), the stated amount of a Letter of Credit denominated in an Alternative
Currency shall be the Equivalent U.S. Dollar Amount thereof as of the
Denomination Date. Upon receipt of notice from the Administrative Agent, each
Lender shall pay to the Administrative Agent its Commitment Percentage of any
amount subject to rebate hereunder.
(c) AMS shall pay to each Agent additional fees as are due and
payable hereafter (the "Agent's Fees") as set forth in a fee letter between
each Agent and AMS.
(d) All computations of fees hereunder shall be made on the
basis of a year of three hundred sixty days for the actual number of days
elapsed.
SECTION 2.13 ADDITIONAL BORROWERS. So long as the Guaranty is in full
force and effect, AMS may request in writing that any Subsidiary of AMS become
a Borrower hereunder, and, if such request is approved in writing by all of the
Lenders (which approval shall not be unreasonably withheld by any Lender),
then, upon satisfaction of each condition precedent to any Loans or Letters of
Credit to or for the account of such Borrower pursuant to Article 7, such
Borrower shall become a party to this Agreement.
ARTICLE 3
TERM LOANS
SECTION 3.1 MAKING THE TERM LOANS. Subject to the conditions
precedent set forth in Sections 7.1 and 7.2, each of Wachovia and NationsBank
(each a "Term Loan Lender") shall, on the Term Loan Closing Date, make a Term
Loan to AMS in the amount of $10,000,000.00.
SECTION 3.2 REPAYMENT. Each Term Loan shall be repaid to each Term
Loan Lender in twenty equal quarterly payments of $500,000, commencing on the
date twenty-seven months from the Term Loan Closing Date and continuing on the
first day of each three-month interval thereafter through the Term Loan
Maturity Date.
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SECTION 3.3 INTEREST; INTEREST PAYMENT DATES. AMS agrees to pay
interest on the unpaid principal balance of each Term Loan from the Closing
Date to the Term Loan Maturity Date at the rate per annum equal to the then
average life interpolated U.S. Treasury Note Yields plus 0.70%. For purposes of
the Section 3.3, the U.S. Treasury Note Yield is defined as the yield to
maturity for the actively traded marketable United States Treasury securities
as reported on the Bloomberg Government Screen "C4" at 11:00 A.M. EST (or, if
not available, any other nationally recognized trading screen reporting on-line
intraday trading in the United States Treasury securities). Interest shall
accrue from and including the Closing Date to but excluding the Term Loan
Maturity Date and shall be payable monthly and on the Term Loan Maturity Date.
Notwithstanding the foregoing, from and after the occurrence and during the
continuance of an Event of Default, AMS will pay to each Term Loan Lender
interest at the Default Rate on the principal of the Term Loan. All interest
provided for in this Section 3.3 shall be payable on demand. The payment or
acceptance of the rate provided by this Section 3.3 shall not constitute a
waiver of any Default Condition or Event of Default or an amendment to this
Agreement, or otherwise prejudice or limit any rights or remedies of Lender.
SECTION 3.4 TERM NOTE. Each Term Loan shall be evidenced by a Term
Loan Note dated as of the Term Loan Closing Date.
ARTICLE 4
GENERAL FUNDING AND PAYMENT PROVISIONS
SECTION 4.1 INCREASED COSTS.
(a) If any change in any Law, or in the interpretation,
administration or application thereof, shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the
Eurocurrency Rate); or
(ii) impose on any Lender or the London interbank market
any other condition affecting this Agreement or Eurodollar Rate
Revolving Credit Loans, or Competitive Bid Loans, made by such
Lender or any Letter of Credit or participation therein (other
than an increase in the Taxes imposed on or with respect to any
sum payable hereunder to or for the account of any Lender);
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan, maintaining any
Competitive Bid Loan or to increase the cost to such Lender of participating
in, issuing or maintaining any Letter of Credit or to reduce the amount of any
sum received or receivable by such Lender hereunder in respect of such Loan or
Letter of Credit by an amount deemed by such Lender to be material, then the
Borrower will pay to such Lender, as the case may be, such additional amount or
amounts as will compensate such Lender, as the case may be, for such additional
costs incurred or reduction suffered.
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(b) If any Lender determines that any change in any generally
applicable Law regarding capital requirements, or in the interpretation,
administration or application thereof prior to the date of this Agreement, has
or would have the effect of reducing the rate of return on such Lender's
capital or on the capital of such Lender's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such lender, or the Letters of Credit issued by such
lender, to a level below that which such Lender or such Lender's holding
company could have achieved but for such change (taking into consideration such
Lender's policies and the policies of such Lender's holding company with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time the Borrower will pay to such Lender, as the case may
be, such additional amount or amounts as will compensate such Lender or such
Lender's holding company for the portion of any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts (including the basis therefor and the calculation thereof) necessary to
compensate such Lender or its holding company, as the case may be, as specified
in clauses (a) or (b) of this Section 4.1, shall be delivered to the Borrower
as soon as practicable, but in any event, within 90 days after such Lender
obtains actual knowledge thereof, and shall be presumptively correct absent
manifest error, provided that such determination is made on a reasonable basis.
The Borrower shall pay such Lender, as the case may be, the amount shown as due
on any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section 4.1 shall not constitute a waiver of such
Lender's or such Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender pursuant to this
Section 4.1 for any increased costs or reductions incurred more than 90 days
prior to the date that such Lender delivers such certificate to the Borrower;
provided further that, if the change in Law giving rise to such increased costs
or reductions is retroactive, then the 90 day period referred to above shall be
extended to include the period of retroactive effect thereof.
SECTION 4.2 AVAILABILITY OF ALTERNATIVE CURRENCY AND RATE OPTIONS.
If, on or prior to the first day of any Interest Period for any Eurocurrency
Rate Revolving Credit Loan, or prior to issuing any Letter of Credit
denominated in an Alternative Currency, the Administrative Agent shall have
determined (which determination shall be final, conclusive and binding upon all
parties) or the Required Banks shall have advised the Administrative Agent,
that:
(a) deposits in the principal amounts of the Loans and in the
currency in which such Loans or Letters of Credit are denominated are not being
offered in the relevant interbank or other market for such Interest Period;
(b) with respect to a Loan or Letter of Credit denominated in
an Alternative Currency, that there shall have occurred any change in national
or international financial, political or economic conditions (including the
imposition of or any change in exchange
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controls) or currency exchange rates which would make it impracticable to make
Loans or to issue Letters of Credit denominated in such Alternative Currency;
(c) the Eurocurrency Rate will not adequately and fairly
reflect any material costs of making, funding or maintaining the Loan; or
(d) by reason of circumstances affecting the relevant
interbank or other markets adequate and reasonable means do not exist for
determining the Eurocurrency Rate; then the Administrative Agent shall promptly
notify the Borrowers and the Lenders, whereupon, until the Administrative Agent
notifies Borrowers that the circumstances giving rise to such suspension no
longer exist, the obligation of the Lenders to make Loans denominated in the
affected Alternative Currency, or to acquire participations in Letters of
Credit denominated in the affected Alternative Currency, or to make Loans with
interest calculated on the basis of an affected Eurocurrency Rate, as the case
may be, shall be suspended. If such notice is given, and until the
Administrative Agent notifies the Borrowers that the circumstances giving rise
to such suspension no longer exists or such notice has been withdrawn by such
Lender, no Loan or Letter of Credit denominated in an Alternative Currency so
affected, or no Loan which bears interest calculated on the basis of a
Eurodollar Rate so affected, as the case may be, shall be made or issued, and
any such Loan outstanding shall, at the end of any applicable Interest Period
therefor, be automatically converted into a Base Rate Loan, and if denominated
in an Alternative Currency so affected, shall be repaid in full or, at
Borrower's option, converted to a Base Rate Loan in the Equivalent U.S. Dollar
Amount of such Alternative Currency.
SECTION 4.3 ILLEGALITY. Notwithstanding any other provisions herein
contained, if, on any date, any Lender shall have determined (which
determination shall be final, conclusive and binding upon all parties) that any
Law, or any change therein or in the interpretation, administration or
application thereof, or compliance by such Lender with any request or directive
(whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) of any Governmental Authority shall make it
unlawful or impossible for such Lender to make, maintain or fund any
Eurocurrency Rate Revolving Credit Loan, such Lender shall promptly notify the
Administrative Agent and the Administrative Agent shall forthwith notify the
Borrowers, whereupon, the obligation of such Lender hereunder to make any such
Loan or to issue a Letter of Credit denominated in an Alternative Currency
shall forthwith be suspended until such Lender notifies the Administrative
Agent that the circumstances giving rise to such suspension no longer exists
and any such Loan then outstanding shall be automatically converted into a Base
Rate Loan or, if such Loan is denominated in an Alternative Currency so
affected, shall be repaid in full or, at Borrower's option, converted to a Base
Rate Loan in the Equivalent U.S. Dollar Amount of such Alternative Currency;
provided, that if any such Law, or any change therein or in the interpretation
or application thereof shall permit the continuance of a Eurocurrency Rate
Revolving Loan through the last day of the applicable Interest Period, such
Loan shall continue as such until the end of such Interest Period.
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SECTION 4.4 PAYMENTS.
(a) Except as expressly provided in Sections 4.2 and 4.3, all
payments of principal and interest hereunder shall be made in the currency in
which such Loans are denominated and in immediately available funds, and
payments of all Facility Fees, Letter of Credit Fees, and all other sums shall
be made in U.S. Dollars and in immediately available funds, and shall be made
prior to 12:00 NOON, Atlanta, Georgia time, on the date of payment to the
principal office of the Administrative Agent or such other office as the
Administrative Agent shall designate in writing. Payments received after 12:00
NOON, Atlanta, Georgia time, shall be deemed to be payments made prior to 12:00
NOON, Atlanta, Georgia time, on the next succeeding Business Day.
Notwithstanding the foregoing, if the Administrative Agent is notified by 12:00
NOON, Atlanta, Georgia time, of a Federal Reserve reference number for a wire
transfer of such payment, such payment shall be effective if actually received
by the Administrative Agent by 2:00 P.M., Atlanta, Georgia time on such
Business Day. Any payment which falls due on a day which is not a Business Day
shall be rescheduled to the next succeeding Business Day, and interest and fees
shall continue to accrue to such rescheduled Business Day unless, with respect
to a Eurocurrency Rate Revolving Credit Loan, such Business Day falls in
another calendar month, in which case the date for such payment shall be the
next preceding Business Day.
(b) Borrower agrees to pay principal, interest, fees and all
other amounts due hereunder or under the Loan Documents without set-off,
recoupment or counterclaim. If some but less than all amounts due from
Borrower are received by a Lender, such Lender shall apply such amounts in the
following order of priority: (i) to the payment of any fees then due and
payable, (ii) to the payment of all other amounts not otherwise referred to in
this Section 4.4 then due and payable hereunder or under the other Loan
Documents (including, but not limited to, any costs and expenses incurred by
such Lender as a result of a Default Condition or an Event of Default), (iii)
to the payment of interest then due and payable on the Loans, and (iv) to the
payment of principal then due and payable on the Loans. No application of
payments will cure any Event of Default or prevent acceleration, or continued
acceleration, of amounts payable under the Loan Documents or prevent the
exercise, or continued exercise, of rights and remedies of any Lender
hereunder, under any of the other Loan Documents or under applicable Law.
SECTION 4.5 PREPAYMENTS.
(a) Subject to Section 4.6 hereof, Borrower shall have the
right to prepay any Revolving Credit, Swingline Loan or Competitive Bid Loan in
whole or in part from time to time on the following terms and conditions: (a)
Borrower shall give Administrative Agent (i) notice delivered on the date of
prepayment of its intent to prepay a Base Rate Loan, or (ii) at least three
Business Days prior notice of its intent to prepay a Eurodollar Rate Revolving
Credit Loan or a Competitive Bid Loan, each such notice to be given prior to
11:00 A.M., Atlanta, Georgia time, on the date specified, in each case
specifying the amount of such prepayment and the particular Loans to be
prepaid, which notice shall be irrevocable and which notice of prepayment,
having been given, the principal amount of the Loans specified in such notice
shall become due and payable on the prepayment date specified therein; and (b)
each partial prepayment of any Loan
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shall be in an aggregate principal amount of $1,000,000 (or the Equivalent U.S.
Dollar Amount) or, if greater, shall be in an integral multiple of $500,000 (or
the Equivalent U.S. Dollar Amount); provided, that no partial prepayment of a
Eurocurrency Rate Revolving Credit Loan or Competitive Bid Loan shall reduce
the outstanding amount thereof to an amount less than $1,000,000 (or the
Equivalent U.S. Dollar Amount).
(b) AMS shall have the right to prepay each Term Loan in whole
or in part from time to time on the following terms and conditions: (i) AMS
shall give each Term Loan Lender at least two Business Days prior notice of its
intent to prepay the Term Loans, each such notice to be given prior to 11:00
A.M., Atlanta, Georgia time, on the date specified, in each case specifying the
amount of such prepayment, which notice shall be irrevocable and which notice
of prepayment, having been given, the principal amount of the Loans specified
in such notice shall become due and payable on the prepayment date specified
therein; (ii) each partial prepayment of a Term Loan shall be in an aggregate
principal amount of $1,000,000, or if greater, shall be in an integral multiple
of $500,000; (iii) each term Loan shall be prepaid in an equivalent amount;
(iv) each partial prepayment shall be applied on the Loan in the inverse order
of the maturity of the installments thereof; and (v) AMS shall pay a prepayment
fee equal to the aggregate of the Prepayment Cost (as hereinafter defined)
applicable to each installment of principal (or portion thereof) to which the
prepayment is applied (each a "Prepaid Installment"). As to each Prepaid
Installment, the "Prepayment Cost" shall be equal to (i) the present value of
the interest that would be payable on the Prepaid Installment from the date of
prepayment to the maturity of such installment at the interest rate payable on
the Loan minus (ii) the present value of the interest that would be payable on
the Prepaid Installment from the date of prepayment to the due date of such
installment at interest rate equal to the annualized yield on the United States
Treasury Bond or note with a maturity date nearest the Term Loan Maturity Date
("Reference Security") as reported in The Wall Street Journal under the
caption, "Treasury Bonds, Notes and Bills," on the date of prepayment. For
purposes of the foregoing computations in clauses (i) and (ii) in the preceding
sentence, present value shall be computed using a discount rate equal to the
annualized yield on the Reference Security as reported on the date of
prepayment.
SECTION 4.6 FUNDING LOSSES AND BREAKAGE COSTS. Within 15 days' notice
of a demand for payment thereof, Borrower shall pay to the Administrative Agent
for the account of any Lender such amount or amounts as may be sufficient in
the reasonable opinion of such Lender to compensate such Lender for any losses
or out-of-pocket expenses incurred by such Lender as a result of (a) any
failure by Borrower to borrow any Eurodollar Rate Revolving Credit Loan or
Competitive Bid Loan after having given notice of its intention to borrow in
accordance with Section 2.3(a) or Section 2.6(a), as applicable (whether by
reason of Borrower's election not to proceed or the non-fulfillment of any of
the conditions set forth in this Agreement), (b) payment of all or any portion
of any Eurodollar Rate Revolving Credit Loan or Competitive Bid Loan prior to
the last day of the applicable Interest Period, (c) failure by Borrower to pay
the principal amount of any Eurodollar Rate Revolving Credit Loan or
Competitive Bid Loan when due (whether at the stated maturity, by reason of
acceleration or otherwise), or (d) any failure by Borrower to fulfill, on or
before the date specified for such Loan, the applicable conditions set forth in
this Agreement. At the election of such Lender, and without limiting the
generality of the foregoing, such loss or out-of-pocket expense may include an
amount equal to the excess of
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(i) the interest that would have been received from Borrower on the amount
re-employed during an Interest Period or the remaining portion of an Interest
Period under this Agreement over (ii) the amount of interest which would have
accrued on such amount if the Lender had placed such funds on deposit with a
prime bank in the London interbank borrowing market from the date of such
prepayment until the end of such Interest Period. Each Lender's determination
of such loss or out-of-pocket expense, in the absence of manifest error, shall
be conclusive; provided that such determination is made on a reasonable basis.
SECTION 4.7 TAXES.
(a) Except as provided in Section 4.8, any and all payments by
a Borrower hereunder shall be made, in accordance with Section 4.4, free and
clear of and without deduction for any and all present or future Taxes,
excluding (w) Taxes imposed on the income of a Lender and franchise taxes
imposed on a Lender by the jurisdiction under the laws of which such Lender is
organized, (x) Taxes imposed by reason of the Lender having some connection
with the jurisdiction imposing the Taxes other than the mere holding and
payment in respect of the Notes, (y) Taxes imposed by reason of the Lender
failing, after reasonable request by the Borrower, to establish its entitlement
to any tax treaty benefits for which such payment is eligible with respect to
such Taxes, including without limitation any failure by a Lender to obtain a
certification from the tax authority of the country in which it is organized of
its status as a resident of that country, or (z) Taxes which would not have
been imposed but for the failure by the Lender, after reasonable request by the
Borrower, timely to comply with certification, information or other reporting
requirements concerning its nationality, residence or identity, if such
compliance is required by statute or by regulation of the jurisdiction imposing
the Taxes as a precondition of relief or exemption from the requirement to make
such deduction or withholding (all such excluded Taxes being hereinafter
referred to, collectively or individually, as "Excluded Taxes"). If a Borrower
shall be required by law to deduct any Taxes (other than Excluded Taxes) from
or in respect of any sum payable hereunder to or for the account of any Lender
other than Wachovia and NationsBank [and their successors and assigns], (i) the
sum payable shall be increased by the amount necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 4.7) such Lender shall receive an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant taxing authority or other Governmental Authority in accordance
with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary Taxes or any other excise or property Taxes which
arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any other Loan
Document (hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Lender other than
Wachovia and NationsBank [and their successor and assigns] for the full amount
of Taxes (other than Excluded Taxes) and Other Taxes (including any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this
Subsection 4.7) paid by such Lender, as the case may be, and any liability
(including penalties, interest and reasonable out-of-pocket expenses) arising
therefrom
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or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted by the relevant taxing authority or other
Governmental Authority. Such indemnification shall be made within 30 days
after the date any Lender makes written demand therefor, which demand may be
made after such Lender determines to challenge or contest such assertion of
Taxes or Other Taxes. After the Borrower makes full payment to the Lender with
respect to such indemnification for Taxes or Other Taxes asserted, if such
Lender or the Borrower reasonably believes in its sole discretion that
reasonable grounds exist to challenge or contest the Taxes or Other Taxes
imposed, then such Lender shall so contest or challenge in good faith the Taxes
or Other Taxes asserted, which contest or challenge shall be at the sole
expense of the Borrower. If a Lender shall become aware that it is entitled to
receive a refund in respect of Taxes or Other Taxes, it shall promptly notify
the Borrower of the availability of such refund and shall, within 30 days after
receipt of a request by the Borrower, apply for such refund at the Borrower's
reasonable out-of-pocket expense. If any Lender receives a refund of any Taxes
or Other Taxes for which such Lender has received payment from a Borrower
hereunder, it shall promptly notify such Borrower of such refund and shall
promptly upon receipt repay such refund to such Borrower, net of all
out-of-pocket expenses of such Lender and without interest; provided, that the
Borrower, upon the request of such Lender, agrees to return such refund (plus
penalties, interest or other charges) to such Lender in the event such Lender
is required to repay such refund.
(d) Within thirty days after the date of any payment of Taxes
or Other Taxes withheld by a Borrower in respect of any payment to any Lender,
such Borrower will furnish to the Administrative Agent, at its address referred
to in Subsection 13.6, the original or a certified copy of a receipt evidencing
payment thereof.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 4.7
shall survive the payment in full of the principal of and interest on all Loans
made hereunder.
(f) On or before the date it becomes a party to this Agreement
and from time to time thereafter as renewals are due and upon any change in
status rendering any certificate or documents previously delivered pursuant to
this Section 4.7(f) invalid or inaccurate, each Lender that is organized under
the laws of any jurisdiction other than the United States or any state thereof
shall, upon written request of a Borrower, deliver to such Borrower such
certificates, documents or other evidence, as specified by the Borrower and
required by the Code or Treasury Regulations issued pursuant thereto, including
Internal Revenue Service Form 1001 or Form 4224 and any other certificate or
statement wherein such Lender claims entitlement to complete exemption from
U.S. federal withholding tax on all interest payments hereunder, or certifies
that the Agreement is effectively connected with the conduct of a trade or
business in the United States. Unless the Borrower and the Administrative
Agent have received forms or other documents satisfactory to them indicating
that payments hereunder or under the Notes are not subject to United States
withholding tax, a Borrower or the Administrative Agent shall withhold taxes
from such payments at the applicable statutory rate in the case of payments to
or for any Lender organized under the laws of a jurisdiction outside the United
States.
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(g) A Borrower shall not be required to pay any additional
amounts to any Lender in respect of withholding tax pursuant to Section 4.7(a)
above if the obligation to pay such additional amounts would not have arisen
but for a failure by such Lender to comply with the provisions of Section
4.7(f), unless such failure results from (i) a change in applicable law,
regulation or official interpretation thereof or (ii) an amendment,
modification or revocation of any applicable tax treaty or a change in official
position regarding the application or interpretation thereof, in each case
after the Closing Date.
(h) Each Lender whose signature is affixed to this Agreement
on the Closing Date represents, as of the Closing Date, that no United States
federal taxes are required to be withheld by a Borrower from any payment to a
Lender hereunder.
SECTION 4.8 PAYMENTS TO WACHOVIA AND NATIONSBANK NET OF CERTAIN
WITHHOLDING TAXES. If Borrower is required by law or regulation to deduct or
withhold any Taxes (other than Excluded Taxes) from any payment of principal,
interest, fees and other amounts for the account of Wachovia or NationsBank or
their respective successors and assigns under the Loan Documents, it shall: (a)
make such deduction or withholding; (b) pay the amount so deducted or withheld
to the appropriate taxing authority not later than the date when due; and (c)
deliver to the Administrative Agent, promptly and in any event within fifteen
days after the date on which such Taxes become due, original tax receipts or
such other evidence as may be available of the payment when due of the full
amount of such Taxes. With respect to all or any portion of any payment for
the account of Wachovia or NationsBank or their respective successors and
assigns from which Borrower is required to deduct or withhold Taxes (other than
Excluded Taxes) at a rate in excess of five percent, Borrower shall first
increase the amount of such payment so that the net amount received by such
Lender after deduction or withholding of such Taxes is equal to the net amount
such Lender would have received, after application of this Section 4.8 but
without regard to this sentence, if the rate at which such Taxes were imposed
on or with respect to such payment were one-half of the actual rate at which
such Taxes are imposed on or with respect to such payment. If Borrower
increases any payment under the preceding sentence and either Wachovia or
NationsBank or their respective successors and assigns thereafter receives a
refund of part or all of the Taxes imposed on or with respect to such payment,
Wachovia or NationsBank or their respective successors and assigns, as
applicable, shall pay to Borrower, promptly and in any event within thirty days
after receipt of such refund, an amount equal to the amount, if any, by which
(i) the sum of the refund and the net amount originally received by it with
respect to such payment exceeds (ii) the net amount it originally would have
received under this Section 4.8 with respect to such payment if the Taxes
imposed on or with respect to such payment had originally been imposed at a
rate reflecting such refund. If Wachovia or NationsBank or their respective
successors and assigns, as the case may be, determines that there is a
reasonable likelihood that it is entitled to a refund of such Taxes, or at
Borrower's request, it agrees that it will undertake reasonable efforts to
obtain any refund of such Taxes to which it may be entitled under the law of
the jurisdiction imposing such Taxes or under any applicable tax treaty.
Notwithstanding the foregoing, Borrower and each of Wachovia and NationsBank or
their respective successors and assigns agree that, in the event Borrower is
required to deduct or withhold Taxes (other than Excluded Taxes) from all or
any portion of any payment at a rate in excess of fifteen percent, Borrower and
Wachovia or NationsBank or their respective successors
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and assigns, as the case may be, shall promptly enter into negotiations with
respect to, shall pursue such negotiations reasonably and in good faith until
agreement is reached upon, and shall implement such changes in the rate at
which Borrower's payments are increased hereunder as will allow Wachovia or
NationsBank or their respective successors and assigns, as the case may be, to
earn the same level of profit on such Loan as it would earn if such Taxes were
withheld at a rate of fifteen percent
SECTION 4.9 HIGHEST LAWFUL RATE. In no event shall the amount of
interest due or payable hereunder exceed the Highest Lawful Rate, and in the
event any such excess is paid by a Borrower or received by a Lender, then such
excess sum shall be deemed to be inadvertently paid or received and shall be
credited as a payment of principal, unless a Borrower shall notify a Lender in
writing that Borrower elects to have such excess returned to it forthwith. It
is the express intent hereof that any Borrower not pay and a Lender not
receive, directly or indirectly, in any manner whatsoever, interest in excess
of that which may be lawfully paid by any Borrower under applicable Law. Each
Borrower and each Lender hereby agree that (a) the only charge imposed by
Lender upon Borrower for the use, detention or forbearance of money in
connection with the Agreement shall be the interest expressed in Section 2.9,
Section 2.10(f) and Section 3.3 and in a Revolving Credit Note, Swingline Note,
Competitive Bid Loan Note or a Term Loan Note, as the case may be, and (b) all
other charges imposed by a Lender on a Borrower in connection with the Loans,
including, without limitation, any Facility Fees, Letter of Credit Fees, the
Administrative Agent's Fees, default and any late charges, and charges for
Taxes and reserve requirements, are and shall be deemed made to compensate such
Lender for administrative and other services and costs performed and incurred,
and to be performed and incurred, by such Lender in connection with the Loans,
and shall under no circumstances be deemed to be charges for the use, detention
or forbearance of money. All charges referred to herein shall be fully earned
when due and non-refundable when paid.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
SECTION 5.1 REPRESENTATIONS AND WARRANTIES. On the date hereof, each
Borrower represents and warrants to the Agents and each Lender as follows:
(a) Existence. Each of the Borrower and its Subsidiaries is a
corporation or partnership duly organized, validly existing and in good
standing under the Laws of the nation in which it is organized and any
political subdivision thereof, and is duly qualified to do business and in good
standing in each other nation and any political subdivision thereof where the
nature or extent of its business activities requires such qualification, except
where the failure to be so qualified and in good standing could not reasonably
be expected to have a Materially Adverse Effect.
(b) Power and Authority. Each of the Borrower and its
Subsidiaries has all requisite power and authority to own or lease its
properties, conduct its business as now conducted and to execute, deliver and
perform the Loan Documents to which it is a party.
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(c) Authorization and Enforceability. The execution, delivery
and performance of the Loan Documents to which it is a party have been duly
authorized by all necessary corporate or partnership action of each of the
Borrower and its Subsidiaries and require no consent of any Person which has
not been obtained, and the Loan Documents constitute valid and binding
obligations of each of the Borrower and its Subsidiaries party thereto,
enforceable in accordance with their terms, except as such enforceability may
be limited by Debtor Relief Laws and by general principles of equity.
(d) No Violation. The execution, delivery and performance of
the Loan Documents do not and will not violate any Borrower's or any of its
Subsidiaries' charter, bylaws, partnership agreement or other organizational
documents, any Laws applicable to such Borrower or any of its Subsidiaries or
any agreement to which such Borrower or any of its Subsidiaries is a party or
by which such Borrower or any of its Subsidiaries is bound, except for
violations of Laws or agreements which could not reasonably be expected to have
a Materially Adverse Effect.
(e) Financial Statements. The Financial Statements of AMS
most recently delivered to Lender have been prepared in accordance with GAAP
and fairly present the consolidated financial condition and results of
operations of AMS and its consolidated Subsidiaries as of the date thereof and
for the period covered thereby, and no material adverse change has occurred in
such financial condition since the date of the Financial Statements most
recently delivered to Lender prior to the date this representation is made or
deemed made.
(f) Litigation. Except as disclosed in the Financial
Statements (or the notes thereto) or other writings heretofore delivered to
Lender, there is no litigation pending or, to the knowledge of any Borrower,
threatened against such Borrower or any of its Subsidiaries which could
reasonably be expected to have a Materially Adverse Effect.
(g) General. All Financial Statements, reports and other
written information heretofore delivered by any Borrower to Lender, when taken
as a whole, do not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(h) Investment Company. Neither AMS nor any of its
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(i) Margin Stock. No Borrower is engaged principally, or as
one of its important activities, in the business of purchasing or carrying any
Margin Stock, and no part of the proceeds of any Loans will be used for any
purpose which violates, or which is inconsistent with the provisions of
Regulation U or Regulation X.
(j) Borrower Subsidiaries. Each Borrower is a Subsidiary of
AMS.
(k) ERISA. AMS and each ERISA Affiliate and each of their
respective Employee Plans are in substantial compliance with ERISA and the
Code, and neither AMS nor any of its ERISA Affiliates has incurred any
"accumulated funding deficiency" with respect to
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any such Plan within the meaning of Subsection 302(a) of ERISA or Section 412
of the Code. AMS and each of its ERISA Affiliates are in substantial
compliance with all requirements of ERISA Sections 601 through 608 and Code
Section 4980B. Neither AMS nor any of its ERISA Affiliates has incurred any
material liability to PBGC in connection with any such Employee Plan. The
assets of each such Employee Plan which is subject to Title IV of ERISA are
sufficient to provide the benefits under such Employee Plan, payment of which
the PBGC would guarantee if such Employee Plan were terminated, and such assets
are also sufficient to provide all other "benefit liabilities" (as defined in
ERISA Section 4001(a)(16)) due under the Employee Plan upon termination. No
Reportable Event has occurred and is continuing with respect to any such
Employee Plan. No such Employee Plan or trust created thereunder, or AMS or
any ERISA Affiliate, has engaged in a Prohibited Transaction which would
subject such Employee Plan or any other Employee Plan of AMS or any of its
ERISA Affiliates, any trust created thereunder, AMS or any ERISA Affiliate, or
any party dealing with any such Employee Plan or any such trust to the tax or
penalty on "prohibited transactions" imposed by Section 502 of ERISA or Section
4975 of the Code. Neither AMS nor any of its ERISA Affiliates is a participant
in or is obligated to make any payment to a Multiemployer Plan.
(l) Taxes. AMS and each of its Subsidiaries has timely filed
or caused to be timely filed all tax returns and reports required to be filed
by any of them in any jurisdiction, and all taxes upon AMS and its Subsidiaries
and upon their respective properties, assets, income and franchises which are
due and payable have been paid when due and payable, except to the extent that
such failure to file or pay shall not have a Materially Adverse Effect. The
charges, accruals and reserves on the books of AMS and its consolidated
Subsidiaries with respect to taxes are, in the reasonable opinion of AMS,
adequate under GAAP. No examination or audit of any U.S. federal income tax
return of AMS by the Internal Revenue Service is currently in progress.
SECTION 5.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All
statements contained in any certificate, Financial Statement, legal opinion or
other instrument delivered by or on behalf of Borrower pursuant to or in
connection with this Agreement or any of the Loan Documents (including but not
limited to any such representation or warranty made in or in connection with
any amendment thereto) shall constitute representations and warranties made
under this Agreement. All representations and warranties made under Section
5.1 (except for the last sentence of Section 5.1(l)) of this Agreement shall be
deemed to be made at and as of the date hereof and at and as of the date of the
making of each Loan. and the issuance of each Letter of Credit. All
representations and warranties made under this Agreement shall survive, and not
be waived by, the execution and delivery of this Agreement and any other Loan
Document, any investigation or inquiry by Lender, or by making any Loan or
issuing any Letter of Credit under this Agreement.
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ARTICLE 6
COVENANTS
SECTION 6.1 AFFIRMATIVE COVENANTS. Each Borrower covenants and agrees
that so long as it may borrow hereunder or any amount due under any of the Loan
Documents shall remain outstanding or unpaid, or any Lender shall have any
Commitment hereunder:
(a) Financial Statements, etc. AMS will deliver to the
Administrative Agent and each Lender (i) within five days of its delivery of
Financial Statements to the U.S. Securities and Exchange Commission, but not
later than ninety-five days after the last day of each of its fiscal years,
consolidated and consolidating Financial Statements showing the financial
condition and results of operations of AMS and its consolidated Subsidiaries as
of the last day of, and for, such fiscal year, which Financial Statements shall
be prepared in accordance with GAAP and be accompanied by the unqualified audit
report (as to the consolidated portions thereof) of Price Waterhouse LLP or
other firm of independent certified public accountants reasonably acceptable to
the Required Lenders; (ii) within five days of its delivery of Financial
Statements to the U.S. Securities and Exchange Commission, but not later than
fifty days after the last day of each of its fiscal quarters, consolidated and
consolidating Financial Statements showing the financial condition and results
of operations of AMS and its consolidated Subsidiaries as of the last day of
such fiscal quarter and for such fiscal quarter and portion of the fiscal year
ending on the last day of such fiscal quarter, which Financial Statements shall
be prepared in accordance with GAAP; and (iii) within thirty days after request
therefor, such other information regarding the financial condition or business
operations of AMS and each of its Subsidiaries as any Lender may reasonably
request (it being understood that the reasonableness of any request shall take
into consideration the availability of resources of AMS to respond thereto),
provided, that the Administrative Agent and each Lender shall agree to observe
(x) such reasonable restrictions which AMS may impose on information which it
deems to be confidential and which is labeled as such, and (y) restrictions
which are imposed on AMS by third parties with respect to the confidential
information of such third parties; provided further, that AMS may satisfy its
obligations under clauses (i) and (ii) of this paragraph by delivery of its
Forms 10-K and 10Q filed with the Securities and Exchange Commission for such
periods and as of such dates. The Financial Statements delivered under clauses
(i) and (ii) above shall be accompanied by a certificate of a responsible
officer (including, but not limited to, the Controller, Deputy Controller and
the Corporate Manager of Accounting) of AMS in substantially the form of
Exhibit I hereto: (x) certifying as to whether, to the best knowledge of such
officer, a Default Condition has occurred and is continuing and, if a Default
Condition has occurred and is continuing, specifying the details thereof and
any action taken or proposed to be taken with respect thereto, and (y) setting
forth reasonably detailed calculations demonstrating compliance with Sections
6.2(a) and 6.2(b) and the ratio of Total Debt to EBITDA for the four fiscal
quarters ending on the last day of the fiscal quarter or fiscal year, as
applicable.
(b) Notices. Borrower will deliver to the Administrative
Agent and each Lender, promptly after an officer of the Borrower obtains
knowledge thereof, notice of the occurrence of any Default Condition or Event
of Default, or the institution or threat of any litigation against the Borrower
or any of its Subsidiaries which could reasonably be expected to
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have a Materially Adverse Effect, and of any other material adverse change in
the financial condition or business operations of the Borrower and its
Subsidiaries, taken as a whole.
(c) Books and Records. AMS will keep its financial books and
records and those of its consolidated Subsidiaries in accordance with GAAP and
permit the Administrative Agent or any Lender to inspect and to discuss with
its officers, directors and accountants such books and records and its
properties and business operations during reasonable business hours.
(d) Obligations, etc. Borrower will timely pay and perform,
and cause each of its Subsidiaries to timely pay and perform, all of its
material Taxes and other obligations, except to the extent being contested by
appropriate proceedings; maintain, and cause each of its Subsidiaries to
maintain insurance (including self insurance) in such amounts, with such
deductibles, and against such risks as is customary for similarly situated
businesses; observe and comply with, and cause each of its Subsidiaries to
observe and comply with, all material applicable Laws (including environmental
Laws) and all material agreements to which it is a party or by which it is
bound.
(e) ERISA. AMS will maintain each of its employee benefit
plans in compliance in all material respects with all applicable requirements
of ERISA and of the Code and with all applicable rulings and regulations issued
under the provisions of ERISA and of the Code.
SECTION 6.2 FINANCIAL COVENANTS. AMS covenants and agrees that so
long as any Borrower may borrow hereunder or any amount due under any of the
Loan Documents shall remain outstanding or unpaid, or any Lender shall have any
Commitment hereunder, AMS and its consolidated Subsidiaries will:
(a) Total Debt to Total Capitalization. Maintain at all times
a ratio of Total Debt to Total Capitalization of not greater than .50 to 1.0.
(b) Fixed Charge Coverage Ratio. Maintain as of the end of
each fiscal quarter, for the four fiscal quarters ending on such date, a ratio
of EBILTDA to Interest and Lease Charges of not less than 2.5 to 1.0.
SECTION 6.3 NEGATIVE COVENANTS. AMS covenants and agrees that so long
as it may borrow hereunder, or any amount due under any of the Loan Documents
shall remain outstanding or unpaid, or any Lender shall have any Commitment
hereunder, AMS and its consolidated Subsidiaries will not:
(a) Changes in Corporate Assets or Structure. (i) Liquidate,
dissolve, reorganize or merge or consolidate with any other company, firm or
association, provided, that AMS may liquidate or dissolve non-useful
Subsidiaries or may merge Subsidiaries with each other or with AMS, or (ii)
acquire another business or non-business entity, provided, that AMS may acquire
one or more business or non-business entities so long as the aggregate amount
of cash disbursed by AMS in connection with all such acquisitions does not
exceed, in any fiscal year of AMS, fifty percent of its Net Worth for such
fiscal year, or (iii) form any new
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Subsidiaries, provided that AMS may form wholly-owned Subsidiaries to which AMS
transfers cash, accounts and notes receivable, inventory, and other assets of
AMS or a Subsidiary of AMS, so long as the aggregate amount and fair market
value of such transferred assets for all such wholly-owned Subsidiaries does
not exceed, in any fiscal year of AMS, twenty-five percent of its Net Worth for
such fiscal year; provided further, that no such permitted acquisition or
formation, or any transfer of assets in connection therewith, shall violate
Section 6.2(a) or Section 6.2(b).
(b) Change in Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof, including any such change by reason of
acquisition.
(c) Distributions. Declare or pay any cash dividends to its
shareholders on its common stock in aggregate amounts in any one fiscal year in
excess of twenty-five percent of its net income for such fiscal year, provided,
that the foregoing limitations shall not apply with respect to the declaration
or payments of dividends by any Subsidiary to AMS or to any other Subsidiary of
AMS.
(d) Mortgages and Pledges. Create, incur, assume, or suffer
to exist any mortgage, pledge, lien, charge or other encumbrance of any kind
upon, or any security interest in, any of its property or assets, whether now
owned or hereafter acquired, or permit any Subsidiary so to do, except
(i) liens existing at the date of this Agreement and
securing Debt outstanding on the date of this Agreement;
(ii) liens securing Debt owing by any Subsidiary to AMS
or to another Subsidiary;
(iii) liens on assets of any entity existing at the time
such entity becomes a Subsidiary and not created in contemplation
of such event;
(iv) liens on assets existing at the time of acquisition
thereof and not created in contemplation of such event; provided,
that such lien shall not extend to any other property of AMS or a
Subsidiary;
(v) liens to secure Debt incurred or guaranteed by AMS
or a Subsidiary to finance the purchase price of land, buildings or
equipment, or improvements to or construction of land, buildings or
equipment, which Debt is incurred or guaranteed prior to, at the
time of, or within 180 days after such acquisition (or in the case
of real property, completion of such improvement or construction or
commencement of full operation of such property, whichever is
later); provided, that such lien shall extend only to the asset to
be acquired or improved with such financing;
(vi) liens on any assets of a corporation existing at
the time such corporation is merged into or consolidated with AMS
or a Subsidiary and not
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created in contemplation of such event; provided, that such lien
shall not extend to any other property of AMS or a Subsidiary;
(vii) liens on any assets in favor of the United States
of America or any State thereof, or in favor of any other country,
or political subdivision thereof, and created to secure payments
pursuant to any contract or statute of any Debt incurred or
guaranteed by AMS or any Subsidiary to finance the purchase price
(or, in the case of real property, the cost of construction) of the
assets subject to any such lien (including, but not limited to,
liens incurred in connection with pollution control, industrial
revenue or similar financings);
(viii) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part, of any
lien referred to in the foregoing paragraphs (i) to (vii),
inclusive, or the refinancing or refunding of any Debt secured
thereby; provided, that (A) such Debt is not secured by any
additional assets and (B) the amount of such Debt secured by any
such lien is not increased;
(ix) liens for property taxes and assessments or
governmental charges or levies and liens securing claims or demands
of mechanics, suppliers, carriers, landlords and other like
Persons;
(x) liens incurred or deposits made in the ordinary
course of business in connection with worker's compensation,
unemployment insurance, social security and other like laws, or to
secure the performance of letters of credit, bids, sales contracts,
leases, statutory obligations, surety, appeal and performance bonds
and other similar obligations, in each case not incurred in
connection with the borrowing of money, the obtaining of advances
or the payment of the deferred purchase price of property;
(xi) attachment, judgment and other similar liens
arising in connection with court proceedings, provided, that
execution and other enforcement of such liens are effectively
stayed and all claims which the liens secure are being actively
contested in good faith and by appropriate proceedings;
(xii) liens arising in the ordinary course of the
business or incidental to the conduct of such business or the
ownership of the assets of AMS or any Subsidiary which liens arise
out of transactions involving the sale or purchase of goods or
services and which do not, in the opinion of AMS, materially impair
the use of such assets in the operations of the business of AMS or
such Subsidiary;
(xiii) liens other than those described in clauses (i)
through (xii) above provided the sum of the aggregate principal
amount secured thereby at any time outstanding does not exceed
$10,000,000; and
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(xiv) liens on any Margin Stock the value of which
exceeds 33% of the value of all assets subject to this Section
6.3(d) other than Margin Stock.
Minor reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions and other minor title
exceptions are not considered liens for purposes of this Section 6.3(d).
ARTICLE 7
CONDITIONS OF LENDING
SECTION 7.1 CONDITIONS PRECEDENT TO AGREEMENT AND THE INITIAL
LOAN THEREUNDER. The obligation of the Lenders to make the initial Loan to a
Borrower shall be subject to the conditions precedent and that the
Administrative Agent and each Lender shall have received, on or before the
Closing Date, all of the following, each dated the Closing Date and in form and
substance satisfactory to the Agents and legal counsel for the Agents:
(a) a closing certificate substantially the same in form
and substance as Exhibit K completed on behalf of each Borrower and Exhibit J,
completed on behalf of the Guarantor;
(b) a certified copy of a resolution of the board of
directors of AMS authorizing the execution, delivery and performance of this
Agreement, and all transactions and documents contemplated hereby and thereby;
(c) an opinion of counsel to AMS, as Borrower and
Guarantor, substantially the same in form and substance as Exhibit L hereto;
and
(d) the obligation of NationsBank and Wachovia to advance
new loans under the Existing NationsBank Credit Agreement and the Existing
Wachovia Credit Agreement shall have been or shall concurrently be terminated
and any amounts outstanding or owed thereunder in respect of principal or
interest as Base Rate Loans shall have been or shall concurrently be paid in
full or funded as Base Rate Loans hereunder. Any Eurocurrency Rate Revolving
Credit Loans outstanding on the Closing Date shall remain outstanding until the
last day of the Interest Period applicable thereto, subject to the terms of
those agreements, and shall reduce availability under the Aggregate Commitments
until the last day of the Interest Period applicable to such loan, whereupon
such loan will be refinanced as a Revolving Credit Loan hereunder.
SECTION 7.2 CONDITIONS PRECEDENT TO EACH LOAN OR LETTER OF
CREDIT. The obligation of a Lender to make any Loan to a Borrower including,
but not limited to, the initial Revolving Credit Loan , a Swingline Loan, a
Competitive Bid Loan and any Term Loan, or to issue any Letter of Credit for
the account of any Borrower, is subject to the satisfaction of the following
conditions:
(a) with respect to any Revolving Credit Loan, receipt by
such Lender of a Revolving Credit Note in the form of Exhibit D hereto,
executed and delivered by AMS and in the form of Exhibit E hereto, executed and
delivered by each other Borrower;
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(b) with respect to any Swingline Loan, the receipt by
the Administrative Agent of the Swingline Note in the form of Exhibit F hereto,
executed and delivered by AMS;
(c) with respect to any Revolving Credit Loan or
Swingline Loan, receipt by the Administrative Agent of the Notice of Borrowing
as required by Section 2.3 hereof;
(d) with respect to any Competitive Bid Loan, receipt by
such Lender of a Competitive Bid Note in the form of Exhibit G hereto, executed
and delivered by AMS;
(e) with respect to any Competitive Bid Loan, receipt by
the Administrative Agent of a Competitive Bid Borrowing Request as required by
Section 2.6(a)(i) hereof;
(f) with respect to a Term Loan, receipt by each Term
Loan Lender of a Term Loan Note in the form of Exhibit H hereto, executed and
delivered by AMS.
(g) the fact that the representations and warranties of
any Borrower contained in this Agreement and in any other Loan Document or
certificate delivered to the Administrative Agent and each Lender hereunder
shall be true, complete and accurate on and as of the date of such Loan or
Letter of Credit to or for the account of such Borrower as though made on and
as of such date;
(h) the fact that, immediately thereafter, no event shall
have occurred and be continuing, or shall result from such Loan, which
constitutes a Default Condition or an Event of Default;
(i) the fact that since the date of the most recent
audited Financial Statements there has occurred no event which could reasonably
be expected to have a Materially Adverse Effect;
(j) the incumbency of persons authorized by Borrower to
sign documents shall be as stated in the certificate of incumbency delivered as
part of the closing certificate or as subsequently modified and reflected in a
certificate of incumbency delivered to the Administrative Agent. The
Administrative Agent may, without waiving this condition, consider it fulfilled
and a representation by Borrower to such effect made, if no written notice to
the contrary, dated the date of such Loan, is received by the Administrative
Agent from Borrower prior to the making of such Loan;
(k) no order, judgment or decree of any court, arbitrator
or Governmental Authority shall purport to enjoin or restrain any Lender from
making a Loan; and
(l) receipt by a Lender of such supplemental
certificates, opinions and documents as any Lender may reasonably request.
Each Notice of Borrowing, Competitive Bid Borrowing
Request, Notice of Continuation/Conversion and Letter of Credit Request
pursuant to Sections 2.3, 2.4, 2.6 and 2.10
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hereof shall be deemed to be a representation and warranty by Borrower on the
date of such Notice as to the facts specified in clauses (g), (h) and (i) of
this Section 7.2.
ARTICLE 8
EVENTS OF DEFAULT
SECTION 8.1 EVENTS OF DEFAULT. The occurrence of any one or more
of the following events or conditions shall constitute an Event of Default
hereunder, whatever the reason for such event and whether it shall be voluntary
or involuntary or within or without the control of a Borrower, any of its
Subsidiaries or any Guarantor, or be effected by operation of or pursuant to
any Law:
(a) NONPAYMENT. Any Borrower shall fail to pay when due
any payment or prepayment of principal of, or interest due on, any Loan or
Unpaid Drawing, or any other amount due hereunder or thereunder, and such
failure shall continue for five days.
(b) MISREPRESENTATIONS. Any Borrower or the Guarantor
shall make (or be deemed to have made) any representation or warranty in any of
the Loan Documents or in any certificate or statement furnished at any time
hereunder or in connection with any of the Loan Documents which proves to have
been incorrect, untrue or misleading in any material respect when made (or
deemed made) or furnished.
(c) COVENANTS. There shall occur any failure to observe
or perform any term, covenant or agreement contained in the Loan Documents
(other than those covered by Section 8.1(a) above and Section 6.1(a) with
respect to the failure to deliver an unqualified audit report) and such failure
continues for a period of thirty (30) days after notice from the Administrative
Agent.
(d) UNQUALIFIED AUDIT REPORT. AMS shall deliver a
qualified audit report and the Administrative Agent shall have notified AMS in
writing within 30 days of the delivery thereof of the occurrence of an Event of
Default arising therefrom.
(e) OTHER DEBTS. Any Borrower, any of its Subsidiaries
or the Guarantor shall fail to make any payment when due on any Debt (other
than Debt incurred under this Agreement) for borrowed money in an amount in
excess of $1,000,000 ("Material Debt") which a Borrower, any of its
Subsidiaries, or the Guarantor is obligated to pay as borrower, guarantor or in
any other capacity or any default or event of default shall occur under any
agreement evidencing or securing any Material Debt.
(f) VOLUNTARY BANKRUPTCY. Any Borrower or the Guarantor
shall file a voluntary petition in bankruptcy or a voluntary petition or answer
seeking liquidation, reorganization, arrangement, readjustment of its debts, or
for any other relief under any Debtor Relief Law; any Borrower or the Guarantor
shall enter into any agreement indicating its consent to, approval of, or
acquiescence in, any such petition or proceeding; any Borrower or the Guarantor
shall apply for or permit the appointment by consent or acquiescence of a
receiver, custodian or trustee of Borrower or the Guarantor, for all or a
substantial part of its property; any Borrower or the Guarantor shall make an
assignment for the benefit of creditors; any Borrower or
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the Guarantor shall be unable or shall fail to pay its debts generally as such
debts become due; or any Borrower or the Guarantor shall admit, in writing, its
inability or failure to pay its debts generally as such debts become due; or
any Borrower or the Guarantor shall take any action to authorize, or in
furtherance of, any of the foregoing.
(g) INVOLUNTARY BANKRUPTCY. There shall have been filed
against any Borrower or the Guarantor an involuntary petition in bankruptcy or
seeking liquidation, reorganization, arrangement, readjustment of its debts or
for any other relief under any Debtor Relief Law and such petition is not
dismissed within sixty days thereafter; or any Borrower or the Guarantor shall
suffer or permit the involuntary appointment of a receiver, custodian or
trustee of Borrower or the Guarantor, for all or any substantial part of its
property; or any Borrower or the Guarantor shall suffer or permit the issuance
of a warrant of attachment, execution or similar process against all or any
substantial part of its property.
(h) JUDGMENTS. Any final judgment or judgments for the
payment of money in excess of $20,000,000 which is or are not adequately
insured or indemnified against shall be rendered against AMS or any Subsidiary
and the same shall remain undischarged for a period of more than thirty days
during which execution shall not be effectively stayed.
(i) GUARANTY DEFAULTS. The Guarantor shall fail in any
material respect to perform or observe any term, covenant or agreement in any
Guaranty; or any Guaranty shall for any reason be partially (including with
respect to future advances) or wholly revoked or invalidated, or otherwise
cease to be in full force and effect, or the Guarantor or any other Person
shall contest in any manner the validity or enforceability thereof or deny that
it has any further liability or obligation thereunder.
ARTICLE 9
REMEDIES
SECTION 9.1 REMEDIES. If an Event of Default shall have occurred
and shall be continuing:
(a) TERMINATION OF COMMITMENT; ACCELERATION
(i) With the exception of an Event of Default
specified in Section 8.1(f) or (g) hereof, the Administrative
Agent may, with the consent of the Required Lenders, and the
Agent shall, if requested to do so by the Required Lenders, do
any one or more of the following: (1) terminate the
Commitment with respect to each Borrower and the Aggregate
Commitments with respect to all of the Borrowers: and (2)
declare the principal of and interest on the Loans and all
other amounts owed under the Loan Documents, and all other
Obligations, to be forthwith due and payable, whereupon all
such amounts shall immediately become absolute and due and
payable, without presentment, demand, notice of intent to
accelerate, notice of acceleration, protest, notice of
nonpayment or notice of any kind, all of which are hereby
expressly waived by each Borrower, anything in any other Loan
Document or in any other document to the contrary
notwithstanding;
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(ii) Upon the occurrence and continuance of an
Event of Default specified in Sections 8.1(f) and (g) hereof,
the principal of and interest on the Loans, all other amounts
owed under any Loan Document, and all other Obligations shall
thereupon and concurrently therewith become absolute and due
and payable, and the Commitment with respect to each Borrower
and the Aggregate Commitments with respect to all of the
Borrowers shall forthwith terminate, all without any action by
the Administrative Agent or any Lender, and without
presentment, demand, notice of intent to accelerate, notice of
acceleration, protest, notice of nonpayment or notice of any
kind, all of which are hereby expressly waived by each
Borrower, anything in any Loan Document or in any other
document to the contrary notwithstanding;
(b) OTHER REMEDIES. Unless and except to the extent
expressly provided for to the contrary herein, the rights of the Administrative
Agent and any Lender specified herein shall be in addition to, and not in
limitation of, the Administrative Agent's or such Lender's rights under any
statute or rule of law or equity, or under any other provision of any of the
Loan Documents, or under the provisions of any other document, instrument or
other writing executed by Borrower or any third party in favor of the
Administrative Agent or Lender, all of which may be exercised successively or
concurrently.
ARTICLE 10
SET-OFFS AND SHARING OF PAYMENTS
SECTION 10.1 RIGHT OF SET-OFF. In addition to any rights now or
hereafter granted under applicable Law or otherwise, and not by way of
limitation of any such rights, upon the occurrence of an Event of Default, each
Lender is authorized at any time and from time to time, without presentment,
demand, protest or other notice of any kind (all of which rights being hereby
expressly waived), to set-off and to appropriate and apply any and all deposits
(general or special) and any other indebtedness at any time held or owing by
such Lender (including, without limitation branches, agencies or Affiliates of
such Lender wherever located) to or for the credit or the account of the
Borrower against obligations and liabilities of the Borrower to such Lender
hereunder, under the Notes, the other Loan Documents or otherwise, irrespective
of whether such Lender shall have made any demand hereunder and although such
obligations, liabilities or claims, or any of them, may be contingent or
unmatured, and any such set-off shall be deemed to have been made immediately
upon the occurrence of an Event of Default even though such charge is made or
entered on the books of such Lender subsequent thereto. The Borrower hereby
agrees that any Person purchasing a participation in the Loans, the Letters of
Credit, and Commitments hereunder pursuant to Section 2.10(h), Section 10.2 or
Section 13.13(e) may exercise all rights of set-off with respect to its
participation interest as fully as if such person were a Lender hereunder.
SECTION 10.2 SHARING OF PAYMENTS. If any Lender, by exercising
any right of set-off or counterclaim or otherwise, obtains payment of a
proportion of the aggregate amount of principal, interest or the fees owing
with respect to the Loans and participations in Letter of Credit reimbursement
obligations which is greater than the proportion received by any other Lender
in respect of the principal, interest, or fees owing with respect to such Loans
and participations in
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Letter of Credit reimbursement obligations then owed and due to such other
Lender, then the Lender receiving such proportionately greater payment shall
simultaneously purchase participations in the Loans and participations in the
Letter of Credit reimbursement obligations owed to such other Lenders so that
the aggregate unpaid principal amount of such Loans and participations in
Letter of Credit reimbursement obligations owed to each Lender shall be shared
pro rata; provided, that nothing in this Section shall impair the right of any
Lender to exercise any right of setoff or counterclaim it may have and to apply
the amount subject to such exercise to the payment of any indebtedness of AMS
other than the Loans and Letter of Credit reimbursement obligations. In the
event that a Lender purchases a participation from any other Lender under the
provision of this Section 10.2(a) and is subsequently required to return all or
any part of such set-off or payment to a Borrower or to a trustee for a
Borrower, the Lender from which it has purchased a participation shall
repurchase such participation to the extent of its share of such returned
amount.
ARTICLE 11
THE AGENT
SECTION 11.1 AUTHORIZATION AND ACTION. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement as are delegated
to the Administrative Agent by the terms hereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent will furnish to
each Lender a copy of any certificate or notice furnished to the Administrative
Agent by a Borrower indicating the existence of a Default or an Event of
Default. The Administrative Agent may in its discretion give any Borrower
notice of any Default of which it has knowledge and, if requested to do so by
the Required Lenders, the Administrative Agent shall give any Borrower notice
of such Default. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary to applicable
law. Each Lender hereby authorizes the Administrative Agent to take delivery
of the Notes and other documents from time to time executed and delivered
hereunder by any Borrower and accepts the benefit of, and agrees to be bound by
the terms of, this Agreement.
SECTION 11.2 AGENT'S RELIANCE, ETC. Neither the Administrative
Agent nor the Documentation Agent nor any of their directors, officers, agents
or employees shall be liable to any Lender for any action taken or omitted to
be taken by it or them under or in connection with this Agreement, except for
its or their own gross negligence or willful misconduct. Without limiting the
generality of the foregoing, the Administrative Agent: may treat the payee of
any Note as the holder thereof until the Administrative Agent receives written
notice of the assignment or transfer thereof signed by such payee and in form
satisfactory to the Administrative Agent; and may consult with legal counsel
(including counsel for any Borrower), independent public accountants and other
experts selected by it and shall not be liable
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for any action taken or omitted to be taken in good faith by it in accordance
with the advice of such counsel, accountants or experts. Without limiting the
generality of the foregoing, neither Agent makes any warranty or representation
to any Lender and shall not be responsible to any Lender for any statements,
warranties or representations made in or in connection with this Agreement;
shall have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement on
the part of any Borrower or to inspect the property (including the books and
records) of any Borrower; shall be responsible to any Lender for the due
execution, legality, validity, or enforceability, of this Agreement, any other
instrument or document furnished pursuant hereto (but the Administrative Agent
shall obtain executed copies of documents held for the benefit of the Lenders
where manually executed copies have not been furnished to each Lender); and
shall incur any liability under or in respect of any provision of this
Agreement by acting upon any notice, consent, certificate or other instrument
or writing (which may be by telegram, telecopy, cable or telex) believed by it
to be genuine and signed or sent by the proper party or parties.
SECTION 11.3 THE AGENTS AND AFFILIATES. With respect to its
Commitment, the Loans made by it and Notes issued to it, an Agent shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not an Agent; for purposes of uniform
terminology only, each Agent shall be referred to as a "Lender" hereunder when
acting in its lending capacity, and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include each Agent in its individual
capacity. Each Agent and its Affiliates may lend money to, act as trustee under
the indentures of, and generally engage in any kind of business with, any
Borrower, any of its Subsidiaries and any Person who may do business with or
own securities of any Borrower or any of its Subsidiaries, all as if such Agent
were not an Agent and without any duty to account therefor to the Lenders.
Each Agent or its Affiliates may accept deposits of any Borrower and its
Subsidiaries.
SECTION 11.4 LENDER CREDIT DECISION, ETC. Each Lender
acknowledges that it has, independently and without reliance upon either Agent,
any other Lender or special counsel to the Agents, and based on the financial
statements of each Borrower, its review of this Agreement, the legal opinions
required to be delivered to it hereunder, the advice of its own counsel and
such other documents and information as it has deemed appropriate, made its own
credit and legal analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
either Agent, any other Lender or special counsel to the Agents, and based on
such review, advice, documents and information as it shall deem appropriate at
the time, continue to make its own decisions in taking or not taking action
under this Agreement.
SECTION 11.5 INDEMNIFICATION. The Lenders agree to indemnify each
Agent (to the extent not reimbursed by a Borrower) ratably according to the
respective Commitment Percentages, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against such Agent in any way relating to or
arising out of this Agreement, the Loans, the Letters of Credit or any action
taken or omitted by such Agent under this Agreement, provided, that no Lender
shall be liable for any portion of such
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liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's gross
negligence or willful misconduct. Without limiting the generality of the
foregoing, each Lender agrees to reimburse an Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by such Agent in connection with the preparation, execution,
administration, or enforcement of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that such Agent is not
reimbursed for such expenses by a Borrower. Notwithstanding anything to the
contrary contained herein, no termination of the Commitment of any Lender shall
relieve it of any obligation to indemnify an Agent (to the extent set forth
above) for any of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature asserted against such Agent for any event or matter occurring, or any
condition existing, or any action taken or omitted by such Agent, under this
Agreement at a time prior to the termination of the Commitment of such Lender,
and for purposes of determining the ratable obligations of the Lenders to
indemnify an Agent, the Commitment Percentages in effect at the time that such
matter or event occurred or condition existed or action was taken or failed to
be taken by such Agent shall govern.
SECTION 11.6 SUCCESSOR AGENT. Subject to the appointment and
acceptance of a successor Administrative Agent, the Administrative Agent may
resign at any time as Administrative Agent under this Agreement by giving
written notice thereof to the Lenders and each Borrower and may be removed as
Administrative Agent under this Agreement at any time with or without cause by
the Required Lenders. Upon any such resignation or removal, AMS shall have the
right to appoint a successor Administrative Agent, subject, however, to the
approval of the Required Lenders, which approval, however, shall not be
unreasonably withheld. If no successor Administrative Agent shall have been so
appointed by AMS and shall have accepted such appointment, within thirty days
after the retiring Administrative Agent's giving of notice of resignation or
the Required Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of AMS and subject, however, to
the approval of the Required Lenders, which approval, however, shall not be
unreasonably withheld, appoint a successor Administrative Agent, which shall be
a financial institution organized under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to, and become vested with, all
the rights, powers, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of
this Section 11 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement.
ARTICLE 12
GUARANTY
SECTION 12.1 OBLIGATIONS GUARANTEED. To induce the Lenders to
make the Loans and to issue the Letters of Credit hereunder, AMS (in its
capacity as a guarantor hereunder, the "Guarantor") irrevocably and
unconditionally guarantees to each Lender the payment when due,
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whether by acceleration or otherwise, of any and all Obligations of any
Borrower to each Lender. The guaranty given hereby is a guaranty of payment,
not a guaranty of collection. Upon the failure of any Borrower to pay any
Obligations when and as the same shall become due, whether at maturity, by
acceleration, prepayment or otherwise, Guarantor promises to and will, upon
written demand by any Lender, forthwith pay, or cause to be paid, to such
Lender in cash an amount equal to the sum of (a) the unpaid principal amount of
such Obligations then due, (b) accrued and unpaid interest on such Obligations
and (c) all other monetary Obligations then due. AMS shall have no liability
under this Guaranty except upon the occurrence and continuation of an Event of
Default described in Article 8 (including nonpayment of any amounts upon
acceleration of the Obligations pursuant Article 9) with respect to any
subsidiary Borrower.
SECTION 12.2 WAIVERS. To the fullest extent permitted by law,
Guarantor expressly waives (a) notice of acceptance of this Guaranty by a
Lender and notice of or consent to the creation or incurrence of any
Obligations to which it may apply; (b) presentment, demand for payment, protest
and notice of dishonor with respect to any Note, (c) any right to assert
against any Lender any defense (legal or equitable), counterclaim, setoff, or
cross claim which the Guarantor may now or hereafter have against any Lender or
any Borrower, but such waiver shall not prevent the Guarantor from asserting
against a Lender in a separate action any claim, action, cause of action, or
demand that the Guarantor might have, whether or not arising out of this
Guaranty; and (d) the benefits of any provision of law requiring that a Lender
exhaust any right or remedy, or take any action, against any Borrower or any
other Person or any property.
SECTION 12.3 LENDER'S RIGHTS. Any Lender may at any time and from
time to time without notice to or the consent of the Guarantor and without
impairing, releasing, discharging or otherwise affecting the obligations of the
Guarantor in whole or in part, and without the endorsement or execution by the
Guarantor of any additional consent, waiver or guaranty: (a) change the
manner, place or terms of payment, and change or extend the time of payment of
or renew or alter or accelerate, any Obligations, modify or amend any of the
provisions of the Loan Documents, or exchange, compromise or surrender any
security therefor; (b) loan additional monies or extend additional credit to
any Borrower, with or without security; (c) sell, release, surrender, realize
upon or otherwise deal with in any manner and in any order any property at any
time pledged or mortgaged to secure the Obligations and any offset
thereagainst; (d) exercise or refrain from exercising any rights against any
Borrower or others (including the Guarantor and any other guarantor of the
Obligations), or against any property; (e) settle or compromise any Obligations
or any security therefor and subordinate the payment of all or any part thereof
to the payment of any indebtedness (whether or not due) of any Borrower to
creditors of any Borrower other than Lender; and (f) apply any sums from any
sources to any Obligations without regard to any Obligations remaining unpaid.
SECTION 12.4 GUARANTY ABSOLUTE AND UNCONDITIONAL. No invalidity,
irregularity or unenforceability of all or any part of the Obligations or of
any security therefor shall affect, impair, release, discharge or be a defense
to this Guaranty, and this Guaranty is an absolute obligation of the Guarantor.
Neither the Guarantor's obligations under this Guaranty nor any remedy for the
enforcement thereof shall be impaired, modified, changed, released or
discharged in any manner whatsoever by (a) an impairment, modification, change,
release, discharge or
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limitation of the liability of any Borrower or by reason of any Borrower's
bankruptcy or insolvency; (b) any determination that any disposition of
collateral securing the Obligations is commercially unreasonable; or (c) any
other act or omission of a Lender which changes the scope of the Guarantor's
risk, except, as to such Lender only, acts or omissions of such Lender in bad
faith.
SECTION 12.5 FURTHER REPRESENTATIONS AND WARRANTIES; CREDIT
INVESTIGATION. The Guarantor represents and warrants to each Agent and each
Lender that: (a) the Guarantor has adequate means to obtain from each
Borrower, on a continuing basis, information concerning Borrower and Borrower's
financial condition and affairs; (b) the Guarantor is not relying on any Agent
or any Lender, its employees, agents or other representatives, to provide such
information, now or in the future; (c) the Guarantor is executing this Guaranty
freely and deliberately, and understands the obligations and financial risk
undertaken by providing this Guaranty; (d) the Guarantor has relied solely on
the Guarantor's own independent investigation, appraisal and analysis of each
Borrower and each Borrower's financial condition and affairs in deciding to
provide this Guaranty; and (e) the Guarantor has not depended or relied on any
Agent or any Lender, its employees, agents or representatives, for any
information whatsoever concerning any Borrower or any Borrower's financial
condition and affairs or other matters material to the Guarantor's decision to
provide this Guaranty or for any counseling, guidance, or special consideration
or any promise therefor with respect to such decision. The Guarantor agrees
that no Agent or Lender has any duty or responsibility whatsoever, now or in
the future, to provide to Guarantor any information concerning any Borrower or
any Borrower's financial condition and affairs and that, if the Guarantor
receives any such information from an Agent or a Lender, its employees, agents
or other representatives, the Guarantor will independently verify the
information and will not rely on any Agent or Lender, its employees, agents or
other representatives, with respect to such information.
SECTION 12.6 REINSTATEMENT OF GUARANTEED OBLIGATIONS. If claim is
ever made upon any Lender for repayment or recovery of any amount or amounts
received by any Lender in payment or on account of any of the Obligations and
any Lender repays all or part of said amount by reason of any judgment, decree
or order of any Governmental Authority having jurisdiction over such Lender or
any of its property, then the Guarantor agrees that any such judgment, decree,
or order shall be binding upon the Guarantor, notwithstanding any revocation
hereof or the cancellation of any Loan Document, and the Guarantor shall be and
remain liable to such Lender hereunder for the amount so repaid or recovered to
the same extent as if such amount had never originally been received by such
Lender. Further, any acknowledgment, new promise, payment of principal or
interest, or otherwise, whether by a Borrower or others (including the
Guarantor), with respect to any of the Obligations shall, if the statute of
limitations in favor of the Guarantor against a Lender shall have commenced to
run, toll the running of such statute of limitations and, if the period of such
statute of limitations shall have expired, prevent the operation of such
statute of limitations.
SECTION 12.7 SUBROGATION RIGHTS; SUBORDINATION. Until all of the
Obligations shall have been paid in full, (i) the Guarantor shall not exercise
any rights arising out of any payment by the Guarantor to a Lender of any of
the Obligations pursuant to this Guaranty including, but
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not limited to, any right of subrogation, indemnity, reimbursement,
contribution, exoneration, payment or any other claim, cause of action, right
or remedy against the Borrower, whether such claim arises at law, in equity or
out of any written or oral agreement between the Guarantor and Borrower or
otherwise, and (ii) any indebtedness of any Borrower to the Guarantor is hereby
subordinated to the Obligations.
ARTICLE 13
MISCELLANEOUS
SECTION 13.1 NO WAIVER; CUMULATIVE RIGHTS; SEVERABILITY. No
failure or delay by any Lender in exercising any right hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right. The
rights of the Lenders or any of them hereunder shall be cumulative and not
exclusive of each other or of any other right now or hereafter provided at Law
or in equity. A determination that any provision of any Loan Document is
unenforceable or invalid shall not affect the enforceability or validity of any
other provision of a Loan Document.
SECTION 13.2 GOVERNING LAW. This Agreement and the other Loan
Documents, and the rights and obligations of the parties hereunder and
thereunder, shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York.
SECTION 13.3 SURVIVAL. The terms and provisions of this Agreement
shall continue in full force and effect, notwithstanding the payment of any
Revolving Credit Note or Term Loan Note, until all of the Obligations to each
Lender have been paid in full and each Lender has terminated this Agreement in
writing. The obligations of each Borrower in Sections 4.1, 4.6, 4.7, 4.8, 13.5
and 13.23 hereof shall survive the termination of this Agreement and repayment
of the Revolving Credit Notes, the Term Loan Note, and other amounts due under
the Loan Documents.
SECTION 13.4 COUNTERPARTS. This Agreement may be executed by one
or more of the parties hereto in any number of separate counterparts, each of
which when fully executed shall be an original, and all of said counterparts
taken together shall be deemed to constitute one and the same agreement.
SECTION 13.5 COST AND EXPENSES. The Borrowers and the Guarantor
(a) will pay all reasonable out-of-pocket expenses by the Agents in connection
with the preparation of this Agreement and the Notes (whether or not the
transactions hereby contemplated shall be consummated), the making of the Loans
or the issuance of the Letters of Credit hereunder, any amendment to or
modification or waiver of any of the terms hereof, including the reasonable
fees and disbursements of counsel for the Agents, subject to limitations on the
amount of such fees as set forth in the fee letters between each Agent and AMS
and correspondence from counsel to the Agents and (b) will pay all
out-of-pocket expenses incurred by each Agent and each Lender in the
enforcement of its respective rights in connection with this Agreement or with
the Loans made or the Notes issued hereunder, including but not limited to, the
reasonable fees and disbursements of counsel for the Agents and for each of the
Lenders.
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SECTION 13.6 NOTICES. Unless otherwise provided herein, all
notices, requests, demands and other communications provided for hereunder to
or upon the respective parties hereto to be effective shall be in writing
(including bank wire, facsimile, telex or similar teletransmission or writing),
and shall be deemed to have been given or made (i) if given by facsimile, when
such facsimile is transmitted to the facsimile number specified below, or (ii)
if given by mail, other than during a general discontinuance of postal service
due to strike, lockout or otherwise, upon the earlier of receipt or the third
Business Day after being deposited in the mail, registered or certified mail,
with first class postage prepaid, addressed as set forth below, or (iii) if
given by any other means (including, without limitation in the case of
overnight courier) when delivered, provided, that any notice, request, demand
or other communication to or upon the Administrative Agent under Articles 2 or
3 hereof shall not be effective until received by the Administrative Agent
addressed as follows or to such other address as may be designated hereafter in
writing by the respective parties hereto:
To: American Management Systems, Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Controller
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To: AMS Management Systems Deutschland GmbH
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Controller
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To: AMS Management Systems Europe S.A./N.V.
c/o American Management Systems, Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Controller
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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To: AMS Management Systems U.K. Ltd.
c/o American Management Systems, Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Controller
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To: AMS Management Systems Canada Inc.
c/o American Management Systems, Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Controller
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To: AMSY Management Systems Netherlands, B.V.
c/o American Management Systems, Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Controller
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To: Nordic Management Systems AB
c/o American Management Systems, Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Controller
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To: AMS Management Systems Australia Pty. Limited
c/o American Management Systems, Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Controller
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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To: AMS Management Systems Espana, S.A.
c/o American Management Systems, Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Controller
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To: AMS Management Systems (Switzerland) AG
c/o American Management Systems, Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Controller
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To: AMS Management Systems Italia S.p.A.
c/o American Management Systems, Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Controller
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Administrative Agent: Wachovia Bank of Georgia, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Syndicate Services
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
A Borrower or the Administrative Agent may change its address for
notice purposes by notice to the other party in the manner provided herein. Any
notice, request or other communication hereunder to a Borrower (other than AMS)
shall be deemed given to and effective against its Subsidiaries.
SECTION 13.7 AMENDMENTS AND WAIVERS. No amendment of any
provision of this Agreement or the Notes shall be effective unless it is in
writing and signed by the Borrowers and the Required Lenders and, if the rights
and duties of the Administrative Agent are affected thereby, the Administrative
Agent, and no waiver of any provision of this Agreement or the Notes, nor
consent to any departure by any Borrower therefrom, shall be effective unless
it is in writing and signed by the Required Lenders and, if the rights and
duties of the Administrative
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Agent are affected thereby, by the Administrative Agent, except that with
respect to amendments or waivers relating to (a) any increase in the amount of
the Commitments, (b) any reduction in the amount of, or postponement of the due
date of, any payment other than an extension of the Revolving Credit
Termination Date, (c) any changes in interest or fees (including any change in
the basis for the calculation of the Applicable Rate), other than the Agent's
Fees, due hereunder, (d) any change in Section 2.8(a) or change in Article 10
in a manner that would alter the pro rata sharing of payments required thereby,
(e) any change in Article 12, or (f) any change in this Section 13.7 or the
definition of "Required Lenders" or "Required Lenders", no such amendment or
waiver shall be effective unless it is in writing and signed by each of the
Lenders. In any event, any waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is given.
SECTION 13.8 TIME OF THE ESSENCE. Time is of the essence of this
Agreement and the other Loan Documents, including, without limitation, in the
interpreting and performance hereof and thereof.
SECTION 13.9 INTERPRETATION. Should any provision of this
Agreement or any of the other Loan Documents require judicial interpretation,
the parties hereto agree that the court interpreting or construing the same
shall not apply a presumption that the terms hereof shall be more strictly
construed against one party by reason of the rule of construction that a
document is to be more strictly construed against the party who itself or
through its agents prepared the same, it being agreed that the Borrowers, the
Guarantor, the Agents and the Lenders and their respective agents participated
in the preparation hereof.
SECTION 13.10 AGENTS AND LENDERS NOT JOINT VENTURER. Neither this
Agreement nor any agreements, instruments, documents or transactions
contemplated hereby (including the Loan Documents) shall in any respect be
interpreted, deemed or construed as making any Lender a partner or joint
venturer with a Borrower or the Guarantor or as creating any similar
relationship or entity, or as creating any fiduciary relationship between a
Borrower or the Guarantor and any Agent or Lender, and each Borrower and the
Guarantor agrees that it will not make any contrary assertion, contention,
claim or counterclaim in any action, suit or other legal proceeding involving
any Agent or Lender and any Borrower.
SECTION 13.11 ACCEPTANCE. This Agreement, together with the other
Loan Documents, shall not become effective unless and until delivered to the
Administrative Agent at its principal office and accepted in writing by each
Lender thereafter at such office as evidenced by its execution hereof (notice
of which delivery and acceptance are hereby waived by each Borrower and the
Guarantor).
SECTION 13.12 RECITALS. All recitals contained herein are hereby
incorporated by reference into this Agreement and made part hereof.
SECTION 13.13 SUCCESSORS AND ASSIGNS: Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of each Borrower, each Agent
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and each Lender that are contained in this Agreement shall bind and inure to
the benefit of its respective successors and assigns.
(a) Each Lender may assign to one or more assignees all
or a constant, and not a varying, percentage of its interests, rights and
obligations under this Agreement (including all or a constant, and not a
varying, percentage of its Commitment and the Loans at the time owing to it and
the Notes held by it); provided, however, that (i) except in the cases of an
assignment to (A) a Lender or an Affiliate of such Lender under circumstances
in which such Lender does not reasonably anticipate that such assignment would
result in increased cost to a Borrower and (B) to any assignee at any time
after the occurrence of Default Condition or an Event of Default, AMS and the
Administrative Agent must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld), (ii) the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 and
the amount of the Commitment of such Lender remaining after such assignment
shall not be less than $5,000,000 or shall be zero, (iii) the parties to each
such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with the Note or Notes subject to such
assignment and a processing and recordation fee of $3,000 and (iv) the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire. Upon acceptance and recording pursuant
to Section 13.13(e), from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five Business
Days after the execution thereof, (A) the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement
and (B) the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto (but shall
continue to be entitled to the benefits of Sections 4.1, 4.7, 4.8, 13.10 and
13.23, as well as to any fees accrued for its account hereunder and not yet
paid).
(b) By executing and delivering an Assignment and
Acceptance, the assigning Lender thereunder and the assignee thereunder shall
be deemed to confirm to and agree with each other and the other parties hereto
as follows: (i) such assigning Lender warrants that it is the legal and
beneficial owner of the interest being assigned thereby free and clear of any
adverse claim and that its Commitment, and the outstanding balances of its
Loans, in each case without giving effect to assignments thereof which have not
become effective, are as set forth in such Assignment and Acceptance, (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto or the financial condition of any Borrower
or the performance or observance by any Borrower of any of its obligations
under this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such assignee represents and warrants
that it is legally
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authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the most recent Financial Statements delivered pursuant to Section 6.1(a) and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(v) such assignee will independently and without reliance upon any Agent, such
assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (vi) such
assignee appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all the obligations which
by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at one of its
offices in Atlanta, Georgia a copy of each Assignment and Acceptance delivered
to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitment of, and principal amount of the Loans owing to,
each Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive in the absence of manifest
error and the Borrowers, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement. The Register shall
be available for inspection by the Borrowers and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee together with the
Note or Notes subject to such assignment, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of AMS and the Administrative
Agent to such assignment, the Administrative Agent shall (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Lenders. Within five
Business Days after receipt of notice, each of the Borrowers, at its own
expense, shall execute and deliver to the Administrative Agent, in exchange
for the surrendered Note or Notes, a new Note or Notes to the order of such
assignee in an amount equal to the applicable Commitment assumed by it pursuant
to such Assignment and Acceptance and, if such assigning Lender has retained a
Commitment, a new Note to the order of such assigning Lender in a principal
amount equal to the applicable Commitment retained by it. Such new Note or
Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes; such new Notes shall be
dated the date of the surrendered Notes which they replace and shall otherwise
be in substantially the form of Exhibit A hereto, as appropriate. Canceled
Notes shall be returned to the appropriate Borrower.
(e) Each Lender may without the consent of the Borrowers
or the Administrative Agent sell participations to one or more banks or other
entities (each a "Participant") in all or a portion of its rights and
obligations under this Agreement (including all
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or a portion of its Commitment and the Loans owing to it and the Notes held by
it); provided, however, that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
Participant shall be entitled to the benefit of the cost protection provisions
contained in Sections 4.1, 4.7 and 4.8 to the same extent as if they were
Lenders but not in excess of those cost protections to which the Lender from
which it purchased its participation would be entitled to under any of such
Sections and (iv) the Borrowers, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, and such Lender
shall retain the sole right to enforce the obligations of a Borrower relating
to the Loans and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder, increasing the Commitment of such Lender
or decreasing the amount of principal of or the rate at which interest is
payable on the Loans, or extending any scheduled principal payment date or date
fixed for the payment of interest on the Loans).
(f) Any Lender or Participant may, in connection with an
assignment or participation or proposed assignment or participation pursuant to
this Subsection 13.13, disclose to the assignee or Participant or proposed
assignee or Participant any information relating to a Borrower furnished to
such Lender by or on behalf of any Borrower; provided that, prior to any such
disclosure of information designated by a Borrower as confidential, each such
assignee or Participant or proposed assignee or Participant shall execute an
agreement whereby such assignee or Participant shall agree to preserve the
confidentiality of such confidential information (subject to those restrictions
set forth in Section 6.1(a) hereof).
(g) Any Lender may at any time assign all or any portion
of its rights under this Agreement and the Notes issued to it to a Federal
Reserve Bank, provided, that no such assignment shall release a Lender from any
of its obligations hereunder.
(h) No Borrower shall assign or delegate any of its
respective rights and duties hereunder without the prior written consent of the
Administrative Agent and each of the Lenders, subject to the execution by such
assignee and delivery to the Agents and the Lenders of such reasonable
documentation as any Lender may request.
(i) If, pursuant to this Subsection 13.13, any interest
in this Agreement or any Commitment, Loan or Note is transferred to any
transferee, Lender or Participant which is organized under the laws of any
jurisdiction other than the United States or any state thereof, the transferor
Lender shall cause such transferee, concurrently with and as a condition to the
effectiveness of such transfer, (i) to represent to the transferor Lender (for
the benefit of the transferor Lender and the Borrowers) that under applicable
law and treaties no United States federal taxes will be required to be withheld
by a Borrower or the transferor Lender with respect to any payments to be made
to such transferee in respect of the Loans, (ii) to furnish to the transferor
Lender and the Borrowers such certificates, documents or other evidence, as
specified by AMS and required by the Code and Treasury Regulations issued
pursuant thereto, including U.S. Internal Revenue Service Form 1001 or Form
4224 and any other certificate or statement
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wherein such transferee claims entitlement to complete exemption from U.S.
federal withholding tax on all interest payments hereunder, or certifies that
the Agreement is effectively connected with the conduct of a trade or business
in the United States, and (iii) to agree (for the benefit of the transferor
Lender and the Borrowers) to provide the transferor Lender and the Borrowers a
new Form 4224 or Form 1001 upon the obsolescence of any previously delivered
form and comparable statements in accordance with applicable U.S. laws and
regulations and amendments duly executed and completed by such transferee, and
to comply from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption.
SECTION 13.14 ENTIRE AGREEMENT. THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS AND ANY OTHER DOCUMENTS TOGETHER WITH THE EXHIBITS AND SCHEDULES
ATTACHED HERETO AND THERETO EXECUTED IN CONNECTION HEREWITH REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR
OR CONTEMPORANEOUS, ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES. Each Borrower and the Guarantor
acknowledges and agrees that the execution of this Agreement and the other Loan
Documents by Borrower and the Guarantor was not based upon any facts or
materials provided by any Agent or Lender, nor was Borrower or the Guarantor
induced to execute this Agreement or any other Loan Document by any
representation, statement or analysis made by any Agent or Lender.
SECTION 13.15 INDEPENDENCE OF COVENANTS. Each covenant of Borrower
herein is independent of each other covenant so made. The fact that the
operation of any such covenant permits a particular action to be taken or
condition to exist does not mean that such action or condition is not
prohibited, restricted or conditioned by the operation of the provisions of any
other covenant herein.
SECTION 13.16 REVISIONS OR UPDATES TO SCHEDULES. A Borrower may,
from time to time, revise or update the information and disclosures set forth
on the Schedules attached hereto by delivering to the Administrative Agent and
each Lender, revised Schedule(s). Each Lender may, in its sole discretion,
accept or reject such revised Schedule(s). From any time after the date of the
Required Lender's written acceptance of such revised Schedule(s), the
representations, warranties and covenants contained herein shall be deemed
modified with respect to the additional or revised information or disclosures
set forth on such revised Schedule(s); provided, however, that the Required
Lender's written acceptance of revised Schedule(s) pursuant to this Section
13.16 shall not be deemed to constitute a waiver of any Default Condition or
Event of Default that is in existence prior to such written acceptance.
SECTION 13.17 SUBMISSION TO JURISDICTION; WAIVER. EACH BORROWER
AND THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE
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NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE
COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS, AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT
SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND AGREES NOT
TO PLEAD OR CLAIM THE SAME;
(c) WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON
IT AND AGREES THAT ALL SUCH SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO BORROWER AT ITS
ADDRESS SET FORTH IN SECTION 13.6 HEREOF OR AT SUCH OTHER ADDRESS OF WHICH THE
ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO AND THAT SERVICE
SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT OR
THREE (3) BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN POSTED TO BORROWER'S
ADDRESS AS SET FORTH IN SECTION 13.6 HEREOF;
(d) HEREBY IRREVOCABLY AND UNCONDITIONALLY APPOINTS AMS
AS ITS AGENT TO RECEIVE ON ITS BEHALF AND ON BEHALF OF ITS PROPERTY SERVICE OF
PROCESS HEREUNDER AND THAT SUCH PROCESS MAY BE SERVED ON ANY BORROWER IN CARE
OF AMS PURSUANT TO SECTION 13.17(c) HEREOF;
(e) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
OR OTHERWISE AFFECT THE RIGHT OF LENDER TO BRING ANY ACTION OR PROCEEDING
AGAINST BORROWER, THE GUARANTOR OR THE PROPERTY OF EITHER IN THE COURTS OF
OTHER JURISDICTIONS.
(f) If for the purpose of obtaining judgment in any court
it is necessary to convert a sum due hereunder in an Alternative Currency into
U.S. Dollars, agrees that the rate of exchange used shall be the spot rate at
which in accordance with normal banking procedures the Alternative Currency
could be purchased in New York City with U.S. Dollars by the person obtaining
such judgment on the Business Day preceding that on which final judgment is
given;
(g) Agrees, to the fullest extent that they may
effectively do so under applicable law, that the obligations of each to make
payments in an Alternative Currency of the principal of and interest on the
Loans and any other amounts due hereunder to a Lender as provided herein (i)
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment, in any currency other than the relevant Alternative Currency,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the
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Alternative Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Alternative Currency so expressed to be
payable and (iii) shall not be affected by an unrelated judgment being obtained
for any other sum due under this Agreement;
SECTION 13.18 WAIVER OF JURY TRIAL. EACH BORROWER, THE GUARANTOR,
THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY INTENTIONALLY AND VOLUNTARILY
WAIVE ANY RIGHT WHICH ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN CONNECTION
WITH ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF
ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE
SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION, CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS.
SECTION 13.19 LENDER NOT IN CONTROL. None of the covenants or
other provisions contained in the Loan Documents shall or shall be deemed to
give any Lender the rights or power to exercise control over the affairs and/or
management of a Borrower, any of its Subsidiaries or the Guarantor, the power
of any Lender being limited to the right to exercise the remedies provided in
the Loan Documents; provided, however, that if any Lender becomes the owner of
any stock or other equity interest in any Person, whether through foreclosure
or otherwise, such Lender shall be entitled (subject to requirements of law) to
exercise such legal rights as it may have by being owner of such stock or
other equity interest in such Person.
SECTION 13.20 REPRODUCTION OF DOCUMENTS. This Agreement and all
other Loan Documents, including (a) consents, waivers, amendments and
modifications, which may subsequently be executed, (b) documents received by
Lender on the Closing Date, and (c) financial statements, certificates and
other information previously or subsequently furnished to any Lender may be
reproduced by such Lender, any Borrower or the Guarantor by any photographic,
photostatic, microfilm, microcard, miniature photographic or similar process.
Borrower, Guarantor and Lender agree and stipulate that any such reproduction
shall, to the extent permitted by applicable Law, be admissible in evidence as
the original itself in any judicial or administrative proceeding whether or not
the original is in existence (and whether or not the reproduction was made by
Lender in the regular course of business) and that any enlargement, facsimile
or further reproductions of the reproduction shall likewise be admissible in
evidence; provided, that if the original is in existence and shall be
reasonably available, the original shall be used in evidence, and not a
reproduction.
SECTION 13.21 MITIGATION OBLIGATIONS; SUBSTITUTION OF LENDERS.
(a) If any Lender requests compensation under Section
4.1, or if a Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section
4.7 or 4.8, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches
or Affiliates, if, in
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the reasonable judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 4.1, 4.7 or 4.8,
as the case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
Without limiting the generality of the foregoing, each Lender shall use all
reasonable efforts to mitigate the effect upon the Borrower of any increased
capital requirement and shall assess any cost related to such increased capital
on a nondiscriminatory basis among the Borrower and other borrowers of such
Lender to which such cost applies and such Lender shall not be entitled to be
compensated for any increased capital requirement unless it is, as a result of
such law, regulation, guideline or request, such Lender's policy generally to
seek to exercise such rights, where available, against other borrowers of such
Lender.
(b) If any Lender requests additional compensation under
the provisions of Sections 4.1 or an increase in additional compensation under
the provisions of Section 4.7 due to a change in the rate of collection or
withholding of Taxes, or shall notify the Administrative Agent or a Borrower
pursuant to Section 4.3 that it is unlawful or impossible for such Lender to
make, maintain or fund a Eurodollar Rate Revolving Credit Loan, any Borrower
may upon the payment of the amount to which such Lender is entitled terminate
the Commitment of such Lender and, with the approval of the Administrative
Agent, which approval shall not be unreasonably withheld, substitute for such
Lender another lender or lenders. Any lender which becomes a "Lender" pursuant
to the provisions of this Subsection 13.21 shall become a party to this
Agreement by executing such instruments or agreements as may be satisfactory to
the Administrative Agent and AMS, including an Assignment and Acceptance
pursuant to Section 13.13, and each Borrower shall execute and deliver to such
Lender a Revolving Credit Note dated as of the date such lender becomes a
Lender.
SECTION 13.22 SEVERAL OBLIGATIONS OF LENDERS. The obligation of
each Lender to make the Loans provided for herein is several, and no Lender
shall be liable in the event that any other Lender fails to make any Loan it
has agreed to make hereunder.
SECTION 13.23 INDEMNIFICATION. From and at all times after the
date of this Agreement, and in addition to all of the other rights and remedies
of the Agents and the Lenders against the Borrowers and the Guarantor, each
Borrower and the Guarantor agrees to hold each Agent and each of the Lenders
harmless from, and to indemnify each Agent and each of the Lenders against, all
losses, damages, costs and expenses (including, but not limited to, reasonable
attorneys' fees, costs and expenses) incurred by an Agent or any of the Lenders
from and after the date hereof, whether direct, indirect or consequential, as a
result of or arising from or relating to the use of the proceeds of the Loans
by a Borrower; provided, however, that the foregoing indemnification shall not
protect an Agent or any Lender from loss, damage, cost or expense directly
attributable to the willful misconduct or gross negligence of such Person. All
of the foregoing losses, damages, costs and expenses of an Agent or any Lender
shall be payable by the Company upon demand by such Agent or such Lender.
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SECTION 13.24 MARGIN STOCK COLLATERAL. Each of the Lenders
represents to the Agents and to each of the other Lenders that it in good faith
is not, directly or indirectly (by negative pledge or otherwise) relying upon
any Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
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IN WITNESS WHEREOF, each Borrower, the Guarantor and the
Administrative Agent and each Lender have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
AMERICAN MANAGEMENT
SYSTEMS, INCORPORATED,
as Borrower and Guarantor
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
TITLE: Secretary and Treasurer
-----------------------------------------
AMS MANAGEMENT SYSTEMS
DEUTSCHLAND GMBH,
as Borrower
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
TITLE: Director
-----------------------------------------
AMS MANAGEMENT SYSTEMS
EUROPE S.A./N.V.,
as Borrower
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
TITLE: Director
-----------------------------------------
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76
\
AMS MANAGEMENT SYSTEMS U.K. LTD.,
as Borrower
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
TITLE: Director
-----------------------------------------
AMS MANAGEMENT SYSTEMS CANADA
INC.,
as Borrower
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
TITLE: Director
-----------------------------------------
AMS MANAGEMENT SYSTEMS
NETHERLANDS, B.V,
as Borrower
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
TITLE: Director
-----------------------------------------
70
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇,
as Borrower
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
TITLE: Director
-----------------------------------------
AMS MANAGEMENT SYSTEMS
AUSTRALIA PTY. LIMITED
as Borrower
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
TITLE: Director
-----------------------------------------
AMS MANAGEMENT SYSTEMS
(SWITZERLAND) AG
as Borrower
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
TITLE: Director
-----------------------------------------
71
78
AMS MANAGEMENT SYSTEMS ITALIA
S.p.A.
as Borrower
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
TITLE: Director
-----------------------------------------
AMS MANAGEMENTS SYSTEMS
ESPANA, S.A.
as Borrower
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
TITLE: Director
-----------------------------------------
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79
COMMONWEALTH OF VIRGINIA
City/County of Fairfax
The foregoing instrument was acknowledged before me in my jurisdiction
aforesaid this 24 day Dec., 1996 by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, who is Director of
AMS Management Systems Espana, S.A., for and on behalf of the corporation.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Notary Public
My commission expires: AUG. 31, 2000
------------------
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80
Amount of Commitment
Commitment Percentage
---------- ----------
$40,000,000 50% WACHOVIA BANK OF
NORTH CAROLINA, N.A.
Lending Office for Base Rate Loans: By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------------
Its: Senior Vice President
----------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇ ▇▇▇▇▇
Lending Office for Eurocurrency Rate Loans: Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇ ▇▇▇▇▇ ATTN: ▇▇▇▇ ▇▇▇▇▇
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81
Amount of Commitment
Commitment Percentage
---------- ----------
$30,000,000 37.5% NATIONSBANK, N.A.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Lending Office for Base Rate Loans: By: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------------------
Its: Vice President
----------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Lending Office for Eurocurrency Loans: Address for Notices:
NationsBank, N.A., London ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Sort Code 40 51 15 15th Floor
SWIFT Address: ▇▇▇▇▇▇▇▇ NC1-001-15-06
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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82
Amount of Commitment
Commitment Percentage
---------- ----------
$10,000,000 12.5% COMMERZBANK A.G.,
NEW YORK BRANCH
Lending Office for Base Rate Loans: By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------------------------
Its: Vice President Vice President
--------------------------------------------------------------
2 World Financial Center
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Lending Office for Eurocurrency Loans: Address for Notices:
Grand Cayman Branch
2 World Financial Center
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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83
NATIONSBANK, N.A.,
as Documentation Agent
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Its: Vice President
-----------------------------------------
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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WACHOVIA BANK OF GEORGIA, N.A.,
as Administrative Agent
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Its: EAD
------------------------------------
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: Syndicate Services
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85
EXHIBIT A
NOTICE OF BORROWING
TO: Wachovia Bank of Georgia, N.A., as Administrative Agent
------------------------------------------
------------------------------------------
Attention:
-------------------------------
Irrevocable notice is hereby given pursuant to the
Multi-Currency Revolving Credit and Term Loan Agreement dated _______________,
1996, by and among American Management Systems, Incorporated, various of its
Subsidiaries, the Lenders named therein, Wachovia Bank of Georgia, N.A., as
Administrative Agent, and NationsBank, N.A., as Documentation Agent (the "Loan
Agreement"), of Borrower's desire to effect the [Revolving Credit Loan]
[Swingline Loan] specified herein. Capitalized terms used herein that are
defined in the Loan Agreement shall have the meanings therein defined.
1. The Business Day of the proposed borrowing is
_______________, ______.
2. The aggregate amount of the proposed U. S. Dollar
borrowing is $_______________.
3. The aggregate amount of the proposed Alternative
Currency borrowing is _______________ [Alternative Currency].
4. The proposed borrowing is to be a [Swingline Loan]
[Base Rate Loan] [Eurocurrency Rate Loan], provided, that any
Revolving Credit Loan denominated in an Alternative Currency shall be
a Eurocurrency Rate Loan.
86
5. The initial Interest Period for a Eurocurrency Rate
Loan shall be [one] [three] [six] months, provided, that a Revolving
Credit Loan denominated in an Alternative Currency may not have a
six-month Interest Period.
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the proposed
borrowing, before and after giving effect thereto and to the application of the
proceeds therefrom:
(a) The applicable representations and warranties of the
undersigned contained in Article 5 of the Loan Agreement are true and
correct in all material respects as though made on and as of such
date.
(b) No Default Condition or Event of Default exists or
shall result from such proposed borrowing.
(c) After giving effect to the proposed borrowing the
aggregate outstanding principal balance of the Loans shall not exceed
the Aggregate Commitments.
(d) No event has occurred since the date of the most
recent audited Financial Statements which could reasonably be expected
to have a Materially Adverse Effect.
Dated: [NAME OF BORROWER]
---------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
A-2
87
EXHIBIT B
NOTICE OF CONTINUATION/CONVERSION
TO: Wachovia Bank of Georgia, N.A., as Administrative Agent
------------------------------------------
------------------------------------------
Attention:
-------------------------------
Irrevocable notice is hereby given pursuant to the
Multi-Currency Revolving Credit and Term Loan Agreement dated _______________,
1996, by and among American Management Systems, Incorporated, various of its
Subsidiaries, the Lenders named therein, Wachovia Bank of Georgia, N.A., as
Administrative Agent, and NationsBank, N.A., as Documentation Agent (the "Loan
Agreement"), of Borrower's desire to effect the Continuation/Conversion of a
Loan thereunder. Capitalized terms used herein that are defined in the Loan
Agreement shall have the meanings therein defined.
1. The Business Day of the proposed
Continuation/Conversion is: _______________, _____.
2. The Type and Amount of the Loan to be
continued/converted is: ____________________.
3. The Type of Loan into which the existing Loan is to
be continued/converted is: _______________.
4. The Interest Period (if applicable) is:
____________________.
88
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the proposed
Continuation/Conversion, before and after giving effect thereto and to the
application of the proceeds therefrom:
(a) The applicable representations and warranties of the
undersigned contained in Article 5 of the Loan Agreement are true and
correct in all material respects as though made on and as of such
date.
(b) No Default Condition or Event of Default exists or
shall result from such Loan as continued or converted.
(c) After giving effect to the proposed
Continuation/Conversion the aggregate outstanding principal balance of
the Loans shall not exceed the Aggregate Commitments.
(d) No event has occurred since the date of the most
recent audited Financial Statements which could reasonably be expected
to have a Materially Adverse Effect.
Dated: [NAME OF BORROWER]
---------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
B-2
89
EXHIBIT C
COMPETITIVE BID BORROWING REQUEST
TO: Wachovia Bank of Georgia, N.A., as Administrative Agent
------------------------------------------
------------------------------------------
Attention:
-------------------------------
Notice is hereby given pursuant to Section 2.6(a) of the
Multi-Currency Revolving Credit and Term Loan Agreement, dated
_______________, 1996, by and among American Management Systems, Incorporated
(the "Borrower"), various of its Subsidiaries, the Lenders named therein,
Wachovia Bank of Georgia, N.A., as Administrative Agent, and NationsBank, N.A.,
as Documentation Agent (the "Loan Agreement"), of Borrower's desire to effect a
Competitive Bid Loan. Capitalized terms used herein that are defined in the
Loan Agreement shall have the meanings therein defined.
1. The Business Day of the proposed borrowing is
_______________, _____.
2. The amount of the proposed borrowing is
$_______________
3. The proposed borrowing shall consist of Competitive
Bid Loans having an Interest Period of _______________.
90
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the proposed
borrowing, before and after giving effect thereto and to the application of the
proceeds therefrom:
(a) The applicable representations and warranties of the
undersigned contained in Article 5 of the Loan Agreement are true and
correct in all material respects as though made on and as of such
date.
(b) No Default Condition or Event of Default exists or
shall result from such proposed borrowing.
(c) After giving effect to the proposed borrowing the
aggregate outstanding principal balance of the Loans shall not exceed
the Aggregate Commitments.
(d) No event has occurred since the date of the most
recent audited Financial Statements which could reasonably be expected
to have a Material Adverse Effect.
Dated: AMERICAN MANAGEMENT SYSTEMS,
--------------------------- INCORPORATED
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
C-2
91
EXHIBIT D
REVOLVING CREDIT NOTE
$ , 1996
--------------- ---------------
FOR VALUE RECEIVED, the undersigned, American Management
Systems, Incorporated (the "Borrower"), hereby promises to pay to the order of
_______________, (hereinafter, together with any holder hereof, referred to as
the "Lender"), on _______________, 2001, at the office of the Administrative
Agent (as defined below), in lawful money of the United States of America, and
in immediately available funds, the principal sum of ____________________
($_______________), or the aggregate unpaid principal amount outstanding of all
Revolving Credit Loans made by Lender to Borrower pursuant to the Loan
Agreement (as defined below), whichever is less, and, prior to maturity, to pay
interest from the date hereof on said principal sum, or the outstanding balance
thereof, whichever is less, in like money and funds, at said office on the date
or dates and at the rate or rates provided for in the Loan Agreement. Interest
on any overdue principal of and, to the extent permitted by law, overdue
interest on the principal amount hereof shall bear interest at the Default
Rate, as provided for in the Loan Agreement.
Lender has been authorized by Borrower to record on the
schedule attached to this Note the amount and date of each Revolving Credit
Loan made by Lender, and the date and amount of each payment of principal
thereof received by Lender, provided, that the failure by Lender to make any
such endorsement or any error therein shall not affect the obligations of
Borrower hereunder.
92
This Note is the Revolving Credit Note referred to in and
entitled to the benefit of that certain Multi-Currency Revolving Credit and
Term Loan Agreement dated _______________, 1996, by and among Borrower, various
of its Subsidiaries, Lender, the other Lenders named therein, Wachovia Bank of
Georgia, N.A., as Administrative Agent, and NationsBank, N.A., as Documentation
Agent, as from time to time amended, modified, supplemented, renewed, or
extended (the "Loan Agreement"). Capitalized terms used herein that are
defined in the Loan Agreement shall have the meanings therein defined.
Upon the occurrence of an Event of Default the principal
hereof and accrued interest hereon may become, or may be declared to be,
forthwith due and payable in the manner, upon the conditions, and with the
effect provided in the Loan Agreement.
Time is of the essence of this Note. In addition and not in
limitation of the foregoing, Borrower agrees to pay all reasonable costs and
expenses incurred in the collection of this Note, including reasonable
attorney's fees if this Note is collected by or through an attorney at law, or
in bankruptcy, receivership, or other court proceeding.
Reference is made to Section 4.5 of the Loan Agreement for
provisions relating to the prepayment hereof.
Borrower hereby waives presentment, demand, notice of
dishonor, protest, and all other notices whatever.
This Note shall be governed by and construed in accordance
with the laws of the State of New York.
D-2
93
Executed under the hand and seal of Borrower by its officers
duly authorized on the date first above written.
AMERICAN MANAGEMENT SYSTEMS,
INCORPORATED
By: (Seal)
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------------------
Attest
[CORPORATE SEAL]
D-3
94
SCHEDULE TO REVOLVING CREDIT NOTE
Date of
Revolving Principal Amount &
Credit Loan Dollar Amount Type of Loan Interest Period Date Repaid
----------- ------------- ------------ --------------- -----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
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---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
D-4
95
EXHIBIT E
REVOLVING CREDIT NOTE
(Alternative Currency)
, 1996
---------------
FOR VALUE RECEIVED, the undersigned, ____________________ (the
"Borrower"), hereby promises to pay to the order of ____________________
(hereinafter, together with any holder hereof, referred to as the "Lender"), on
_______________, 2001, at the office of the Administrative Agent (as defined
below), in lawful money of [Name of Country], and in immediately available
funds, the aggregate unpaid principal amount outstanding of all Revolving
Credit Loans denominated in [Borrower Currency] made by Lender to Borrower
pursuant to the Loan Agreement (as defined below), and, prior to maturity, to
pay interest from the date hereof on the outstanding principal balance thereof,
in like money and funds, at said office on the date or dates and at the rate or
rates provided for in the Loan Agreement. Interest on any overdue principal of
and, to the extent permitted by law, overdue interest on the principal amount
hereof shall bear interest at the Default Rate, as provided for in the Loan
Agreement.
Lender has been authorized by Borrower to record on the
schedule attached to this Note the amount and date of each Revolving Credit
Loan denominated in [Borrower Currency] made by Lender, and the date and amount
of each payment of principal thereof received by Lender, provided, that the
failure by Lender to make any such endorsement or any error therein shall not
affect the obligations of Borrower hereunder.
96
This Note is the Revolving Credit Note referred to in and
entitled to the benefit of that certain Multi-Currency Revolving Credit and
Term Loan Agreement dated _______________, 1996, by and among American
Management Systems ("AMS"), Borrower, various other Subsidiaries of AMS,
Lender, the other Lenders named therein, Wachovia Bank of Georgia, N.A., as
Administrative Agent, and NationsBank, N.A., as Documentation Agent, as from
time to time amended, modified, supplemented, renewed or extended (the "Loan
Agreement"). Capitalized terms used herein that are defined in the Loan
Agreement shall have the meanings therein defined.
Upon the occurrence of an Event of Default the principal
hereof and accrued interest hereon may become, or may be declared to be,
forthwith due and payable in the manner, upon the conditions and with the
effect provided in the Loan Agreement.
Time is of the essence of this Note. In addition, and not in
limitation of the foregoing, Borrower agrees to pay all reasonable costs and
expenses incurred in the collection of this Note, including reasonable
attorney's fees if this Note is collected by or through an attorney at law, or
in bankruptcy, receivership, or other court proceeding.
Reference is made to Section 4.5 of the Loan Agreement for
provisions relating to the prepayment hereof.
Borrower hereby waives presentment, demand, notice of
dishonor, protest, and all other notices whatever.
This Note shall be governed by and construed in accordance
with the laws of the State of New York.
E-2
97
Executed under the hand and seal of Borrower by its officers
duly authorized on the date first above written.
[NAME OF BORROWER]
By: (Seal)
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------------------
Attest
[CORPORATE SEAL]
▇-▇
▇▇
▇▇▇▇▇▇▇▇ TO REVOLVING CREDIT NOTE (ALTERNATIVE CURRENCY)
Date of Principal
Revolving Amount of Amount &
Credit Loan Borrower Currency Interest Period Date Repaid
----------- ----------------- --------------- -----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇
SWINGLINE NOTE
$ , 1996
--------------- ---------------
FOR VALUE RECEIVED, the undersigned, American Management
Systems, Incorporated ("Borrower"), hereby promises to pay to the order of
Wachovia Bank of North Carolina, N.A. (hereinafter, together with any holder
hereof, referred to as "Lender"), on _______________, 2001, at the office of
the Lender, in lawful money of the United States of America, and in immediately
available funds, the principal sum of ____________________ ($_______________),
or the aggregate unpaid principal amount outstanding of all Swingline Loans
made by Lender to Borrower pursuant to the Loan Agreement (as defined below),
whichever is less, and, prior to maturity, to pay interest from the date hereof
on said principal sum, or the outstanding balance thereof, whichever is less,
in like money and funds, at said office on the date or dates and at the rate or
rates provided for in the Loan Agreement. Interest on any overdue principal of
and, to the extent permitted by law, overdue interest on the principal amount
hereof shall bear interest at the Default Rate, as provided for in the Loan
Agreement.
Lender has been authorized by Borrower to record on the
schedule attached to this Note the amount and date of each Swingline Loan made
by Lender, and the date and amount of each payment of principal thereof
received by Lender, provided, that the failure by Lender to make any such
endorsement or any error therein shall not affect the obligations of Borrower
hereunder.
This Note is the Swingline Note referred to in and entitled to
the benefit of that certain Multi-Currency Revolving Credit and Term Loan
Agreement dated _______________,
100
1996, by and among Borrower, various of its Subsidiaries, Lender, the other
Lenders named therein, Wachovia Bank of Georgia, N.A., as Administrative Agent,
and NationsBank, N.A., as Documentation Agent, as from time to time amended,
modified, supplemented, renewed or extended (the "Loan Agreement").
Capitalized terms used herein that are defined in the Loan Agreement shall have
the meanings therein defined.
Upon the occurrence of an Event of Default the principal
hereof and accrued interest hereon may become, or may be declared to be,
forthwith due and payable in the manner, upon the conditions and with the
effect provided in the Loan Agreement.
Time is of the essence of this Note. In addition and not in
limitation of the foregoing, Borrower agrees to pay all reasonable costs and
expenses incurred in the collection of this Note, including reasonable
attorney's fees if this Note is collected by or through an attorney at law, or
in bankruptcy, receivership, or other court proceeding.
Reference is made to Section 4.5 of the Loan Agreement for
provisions relating to the prepayment hereof.
Borrower hereby waives presentment, demand, notice of
dishonor, protest, and all other notices whatever.
This Note shall be governed by and construed in accordance
with the laws of the State of New York.
F-2
101
Executed under the hand and seal of Borrower by its officers
duly authorized on the date first above written.
AMERICAN MANAGEMENT SYSTEMS,
INCORPORATED
By: (Seal)
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------------------
Attest
[CORPORATE SEAL]
F-3
102
SCHEDULE TO SWINGLINE NOTE
Date of Principal Amount &
Swingline Loan Dollar Amount Interest Period Date Repaid
-------------- ------------- --------------- -----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
F-4
103
EXHIBIT G
COMPETITIVE BID NOTE
$ , 19
-------------------- -------------- ---
FOR VALUE RECEIVED, the undersigned, American Management
Systems, Incorporated (the "Borrower"), promises to pay to the order of
____________________ (hereinafter, together with any holder hereof, referred to
as the "Lender"), on _______________, 2001, at the office of the Administrative
Agent (as defined below), in lawful money of the United States of America, and
in immediately available funds, the principal sum of ____________________
($_______________), or the aggregate unpaid principal amount outstanding of all
Competitive Bid Loans made by the Lender to the Borrower pursuant to the Loan
Agreement (as defined below), whichever is less, and prior to maturity, to pay
interest from the date hereof on said principal sum, or the outstanding balance
thereof, whichever is less, in like money and funds, at the said office on the
date or dates and at the rate or rates provided for in the Loan Agreement.
Interest on any overdue principal of and, to the extent permitted by law,
overdue interest on the principal amount hereof shall bear interest at the
Default Rate, as provided for in the Loan Agreement.
Lender has been authorized by Borrower to record on the
schedule attached to this Note the amount and date of each Competitive Bid Loan
made by Lender, and the date and amount of each payment of principal thereof
received by Lender, provided, that the failure by Lender to make any such
endorsement or any error therein shall not affect the obligations of Borrower
hereunder.
104
This Note is the Competitive Bid Note referred to in and
entitled to the benefit of that certain Multi-Currency Revolving Credit and
Term Loan Agreement dated _______________, 1996, by and among the Borrower,
various of its Subsidiaries, Lender, the other Lenders named therein, Wachovia
Bank of Georgia, N.A., as Administrative Agent, and NationsBank, N.A., as
Documentation Agent, as from time to time amended, modified, supplemented,
renewed, or extended (the "Loan Agreement"). Capitalized terms used herein
that are defined in the Loan Agreement shall have the meanings therein defined.
Upon the occurrence of an Event of Default the principal
hereof and accrued interest hereon may become, or may be declared to be,
forthwith due and payable in the manner, upon the conditions and with the
effect provided in the Loan Agreement.
Time is of the essence of this Note. In addition and not in
limitation of the foregoing, Borrower agrees to pay all reasonable costs and
expenses incurred in the collection of the Note, including reasonable
attorney's fees, if this Note is collected by or through an attorney at law, or
in bankruptcy, receivership, or other court proceeding.
Reference is made to Section 4.5 of the Loan Agreement for
provisions relating to the prepayment hereof.
The Borrower hereby waives presentment, demand, notice of
dishonor, protest, and all other notices whatever.
This Note shall be governed by and construed in accordance
with the laws of the State of New York.
G-2
105
Executed under the hand and seal of the Borrower, by its
officers duly authorized on the date first above written.
AMERICAN MANAGEMENT SYSTEMS,
INCORPORATED
By: (Seal)
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
----------------------------------------------
Attest
[CORPORATE SEAL]
G-3
106
SCHEDULE TO COMPETITIVE BID NOTE
Date of Principal
Competitive Amount Amount and
Bid Loan Interest Rate of Loan Maturity Date Date Repaid
-------- ------------- ------- ------------- -----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
---------- --------- ----------- ---------- ----------
G-4
107
EXHIBIT H
TERM LOAN NOTE
$10,000,000 , 1996
-----------------
FOR VALUE RECEIVED, the undersigned, American Management
Systems, Incorporated (the "Borrower"), hereby promises to pay to the order of
[Wachovia Bank of North Carolina, N.A.] [NationsBank, N.A.] (hereinafter,
together with any holder hereof, referred to as "Lender"), at the office of the
Administrative Agent (as defined below) , in lawful money of the United States
of America, and in immediately available funds, the principal sum of Ten
Million Dollars ($10,000,000.00) in twenty equal quarterly payments of
$500,000.00 each commencing on _______________, 19___, and continuing on the
first day of each three-month interval thereafter, provided, that any remaining
principal balance shall be paid in full, with interest, on ____________, 2003.
Borrower shall pay interest from the date hereof on said principal sum, in like
money and funds, at said office on the date or dates and at the rate or rates
provided for in the Loan Agreement (as defined below). Interest on any overdue
principal of and, to the extent permitted by law, overdue interest on the
principal amount hereof shall bear interest at the Default Rate, as provided
for in the Loan Agreement.
This Note is the Term Loan Note referred to in and entitled to
the benefit of that certain Multi-Currency and Term Loan Agreement dated
_______________, 1996, by and among Borrower, various of its Subsidiaries,
Lender, the other Lenders named therein, Wachovia Bank of Georgia, N.A., as
Administrative Agent, and NationsBank, N.A., as Documentation Agent, as from
time to time amended, modified, supplemented, renewed or extended (the "Loan
108
Agreement"). Capitalized terms used herein that are defined in the Loan
Agreement shall have the meanings therein defined.
Upon the occurrence of an Event of Default the principal
hereof and accrued interest hereon may become, or may be declared to be,
forthwith due and payable in the manner, upon the conditions and with the
effect provided in the Loan Agreement.
Time is of the essence of this Note. In addition and not in
limitation of the foregoing, Borrower agrees to pay all reasonable costs and
expenses incurred in the collection of this Note, including reasonable
attorney's fees if this Note is collected by or through an attorney at law, or
in bankruptcy, receivership, or other court proceeding.
Reference is made to Section 4.5 of the Loan Agreement for
provisions relating to the prepayment hereof.
Borrower hereby waives presentment, demand, notice of
dishonor, protest, and all other notices whatever.
This Note shall be governed by and construed in accordance
with the laws of the State of New York.
H-2
109
Executed under the hand and seal of Borrower by its officers
duly authorized on the date first above written.
AMERICAN MANAGEMENT SYSTEMS,
INCORPORATED
By: (Seal)
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------------------
Attest
[CORPORATE SEAL]
H-3
110
EXHIBIT I
, 1996
[Lender Address] --------------- ---
Dear :
------------
Pursuant to Section 6.1(a) of the Multi-Currency Revolving
Credit and Term Loan Agreement dated _______________, 1996 (the "Loan
Agreement") among American Management Systems, Incorporated ("AMS"), various of
its Subsidiaries, the Lenders named therein, Wachovia Bank of Georgia, N.A., as
Administrative Agent, and NationsBank, N.A., as Documentation Agent, the
following are submitted for AMS and its consolidated Subsidiaries for the
[Fiscal Quarter] [Fiscal Year] ended _______________, 19___.
Consolidated Financial Statements for [Fiscal Quarter] [Fiscal
year] ended _______________, 19___.
I hereby certify that the foregoing Financial Statements of
the Borrower are complete and correct in all material respects and present
fairly, in accordance with GAAP, on a consolidated basis, the statements of
cash flow and the financial condition of AMS and its consolidated Subsidiaries,
and the results of their operations and changes in stockholders' equity for the
reporting period.
[No change in GAAP or in the application of GAAP to the
preparation of the Financial Statements has occurred since the date of the
audited Financial Statements dated as of _______________, 19___.] [Since the
date of the audited Financial Statements dated as of _______________, 19___,
there have occurred the following changes in GAAP or in the application of GAAP
to the preparation of the Financial Statements: ________________________________
________________________________________________________________________________
______________________________________________. The effect of such change is
as follows: ____________________________________________________________________
_________________________________________________________________________.]
The following Default Condition or Event of Default exists on the date hereof:
[None]
[or]
[Describe any such Default Condition or Event of Default]
The Borrower proposes to take the following steps with respect to any such
Default Condition or Event of Default:
111
I further certify that no Default Condition or Event of
Default has occurred as defined in Article 8 of the Loan Agreement except as
specified in Exhibit 1 hereto.
The following calculations are provided demonstrating
compliance with Section 6.2(a) and Section 6.2(b) of the Loan Agreement.
Section 6.2(a) - Total Debt to Total Capitalization Ratio .50 to 1.0
Actual at ,19
--------------- ---
(1) Total Debt $
---------------------------------
(2) Net Worth (adding back treasury
stock up to $75 million) $
---------------------------------
(3) Total Capitalization (Sum of (1) and (2)) $
---------------------------------
(4) Ratio of (1) to (3) to
---- ----
Section 6.2(b) - Fixed Charge Coverage Ratio 2.5 to 1.0
Actual at , 19
--------------- ---
(1) EBILTDA $
---------------------------------
(2) Interest and Lease Charges $
---------------------------------
(3) Ratio of (1) to (2) to
---- ----
All capitalized terms used herein but not defined herein shall
have the meanings set forth for those terms in the Loan Agreement.
Yours truly,
AMERICAN MANAGEMENT SYSTEMS, INC.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
I-2
112
EXHIBIT J
CLOSING CERTIFICATE
The undersigned, as ____________________ of American
Management Systems, Incorporated (the "Borrower" and "Guarantor"), in
connection with that certain Multi-Currency Revolving Credit and Term Loan
Agreement (the "Loan Agreement") of even date herewith by and among Borrower
and Guarantor, the Lenders named therein (each a "Lender"), Wachovia Bank of
Georgia, N.A., as Administrative Agent, and NationsBank, N.A., as Documentation
Agent, hereby certifies to the Lenders that:
1. Attached hereto as Exhibit A is a true, correct, and
complete copy of resolutions of the Board of Directors of Borrower and
Guarantor duly adopted as of the ____ day of __________, 1996, such
corporate action having been duly taken in accordance with the
provisions of applicable law, the Articles of Incorporation and the
By-Laws of Borrower and Guarantor, and being now in full force and
effect, without any modifications in any respect. The resolutions
attached as Exhibit A authorize Borrower and Guarantor and the
officers designated therein to execute and deliver, and to do all
things necessary or appropriate for the payment and performance of all
Borrower's and Guarantor's obligations under the Loan Agreement, the
Revolving Credit Note, the Term Loan Note, the Swingline Note, the
Competitive Bid Note, and the other Loan Documents to which Borrower
and Guarantor is party. Each of the Loan Documents to which Borrower
and Guarantor is a party has been duly executed and delivered by
Borrower and Guarantor.
113
2. Each of the representations and warranties of
Borrower and Guarantor contained in the Loan Agreement and the other
Loan Documents is accurate and complete in all respects as of the date
of this Certificate.
3. The following persons have been duly elected to the
offices set forth beside their names, have been duly qualified, and as
of the date of the execution of the Loan Agreement were, and on the
date hereof are, officers or other representatives of Borrower and
Guarantor, holding, in the case of officers, the offices set forth
opposite their respective names below, and the signatures set forth
opposite their respective names are their respective genuine
signatures:
Name Title Signature
---- ----- ---------
-------------------------- -------------------------- --------------------------
-------------------------- -------------------------- --------------------------
This Certificate is made and delivered for the benefit of
Lenders, and Lenders are entitled to rely on the warranties, representations
and facts set forth herein in making the Revolving Credit Loans, Term Loans,
Swingline Loans, and Competitive Bid Loans described in and pursuant to the
Loan Agreement. Capitalized terms used herein and not otherwise defined are
used as defined in the Loan Agreement.
J-2
114
IN WITNESS WHEREOF, the undersigned has signed this
Certificate and affixed hereto the seal of Borrower and Guarantor, as of the
____ day of __________, 1996.
AMERICAN MANAGEMENT SYSTEMS,
INCORPORATED
By: (Seal)
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
---------------------------------------------
Attest
[CORPORATE SEAL]
J-3
115
EXHIBIT K
CLOSING CERTIFICATE
The undersigned, who is the _______________ of
____________________, a corporation (the "Borrower"), in connection with that
certain Multi-Currency Revolving Credit and Term Loan Agreement (the "Loan
Agreement") of even date herewith by and among American Management Systems,
Inc. ("AMS"), Borrower, various other Subsidiaries of AMS, the Lenders named
therein, Wachovia Bank of Georgia, N.A., as Administrative Agent, and
NationsBank, N.A., as Documentation Agent, hereby certifies to Lender that:
1. Attached hereto as Exhibit A is a true, correct and
complete copy of resolutions of the Board of Directors of Borrower
duly adopted as of the ____ day of ___________, 1996, such corporate
action having been duly taken in accordance with the provisions of
applicable law, the Articles of Incorporation and the By-Laws of
Borrower, and being now in full force and effect, without any
modifications in any respect. The resolutions attached as Exhibit A
authorize Borrower and the officers designated therein to execute and
deliver, and to do all things necessary or appropriate for the payment
and performance of all the Borrower's obligations under, the Loan
Agreement, the Revolving Credit Note, and the other Loan Documents to
which the Borrower is party. Each of the Loan Documents to which
Borrower is a party has been duly executed and delivered by Borrower.
2. Each of the representations and warranties of Borrower
contained in the Loan Agreement and the other Loan Documents is
accurate and complete in all respects as of the date of this
Certificate.
116
3. The following persons have been duly elected to the
offices set forth beside their names, have been duly qualified, and as
of the date of the execution of the Loan Agreement were, and on the
date hereof are, officers or other representatives of Borrower
holding, in the case of officers, the offices set forth opposite their
respective names below, and the signatures set forth opposite their
respective names are their respective genuine signatures:
Name Title Signature
---- ----- ---------
-------------------------- -------------------------- --------------------------
-------------------------- -------------------------- --------------------------
This Certificate is made and delivered for the benefit of
Lender and Lender is entitled to rely on the warranties, representations and
facts set forth herein in making the Revolving Credit Loans described in and
pursuant to the Loan Agreement. Capitalized terms used herein and not
otherwise defined are used as defined in the Loan Agreement.
K-2
117
IN WITNESS WHEREOF, the undersigned has signed this
Certificate and affixed hereto the seal of Borrower, as of the ____ day of
__________, 1996.
[NAME OF BORROWER]
By: (Seal)
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
-----------------------------------------------
Attest
[CORPORATE SEAL]
K-3
118
EXHIBIT L
Wachovia Bank of Georgia, N.A.,
as Administrative Agent for the Lenders
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Syndicate Services
Re: Multi-Currency Revolving Credit and Term Loan Agreement (the "Loan
Agreement") dated as of December ____, 1996 by and among Wachovia
Banks of Georgia, N.A., as Administrative Agent, NationsBank, N.A.,
as Documentation Agent, the Lenders named therein and American
Management Systems, Incorporated; AMS Management Systems
Deutschland GmbH, AMS Management Systems Europe S.A./N.V., AMS
Management Systems U.K. Ltd., AMS Management Systems Canada Inc.,
AMSY Management Systems Netherlands, B.V., Nordic Business
Management Systems AB, AMS Management Systems Australia Pty.
Limited, AMS Management Systems Espana, S.A., AMS Management
Systems (Switzerland) AG, AMS Management Systems Italia S.p.A.
(each a "Borrower," collectively, the "Borrowers")
Ladies and Gentlemen:
We have acted as counsel to American Management Systems,
Incorporated ("AMS"), as a Borrower and as Guarantor, in connection with the
Loan Agreement. As counsel, we have examined executed copies of the following
fully executed documents, each dated as of the date hereof (collectively, the
"Loan Documents"):
1. the Loan Agreement,
2. the Revolving Credit Note of AMS (the "Revolving
Credit Note"),
3. the Term Loan Note of AMS,
4. the Swingline Note of AMS, and
5. the Competitive Bid Note of AMS.
In connection with our opinion, we have examined a certificate
(the "Closing Certificate"), dated the date hereof, from the corporate
secretary of AMS. We have also examined the following: (i) the Second Amended
and Restated Certificate of Incorporation of AMS, as certified to us by the
Closing Certificate, (ii) the Bylaws of AMS in effect on the date hereof, as
certified to us by the Closing Certificate; (iii) copies of the resolutions of
the Board of Directors of AMS and the unanimous written consent of the
Executive Committee of the Board of Directors of AMS authorizing the execution,
delivery and performance of each of the Loan Documents, as certified to us by
the Closing Certificate, and (iv) the good standing certificates
119
for AMS, dated December ____, 1996, provided and certified by the Secretary of
State of the State of Delaware and the State Corporation Commission of the
Commonwealth of Virginia, respectively. Our examination did not include any
review of the files, documents or internal records of any Borrower.
Unless facts material to the opinions expressed herein are
specifically stated to have been independently established or verified by us,
we have relied as to such facts solely upon the representations made by AMS in
the Closing Certificate and in the Loan Documents, and upon the certificates of
public officials referred to above.
The opinions expressed in this letter concern only the effect
of the Delaware General Corporation Law and the laws (excluding the principles
of conflict of laws) of the State of New York. We assume no obligation to
supplement this letter if any of the applicable laws or facts changes in any
manner. Capitalized terms used herein and not otherwise defined herein have the
respective meanings assigned to them in the Loan Agreement.
Based upon and subject to the foregoing and to the
qualifications stated herein, we are of the opinion that:
I. AMS is a corporation validly existing under the laws
of the State of Delaware and in good standing under the laws of the
State of Delaware and the Commonwealth of Virginia. AMS has the
corporate power and authority to execute, deliver and perform the Loan
Documents.
II. All requisite corporate action on the part of AMS, to
authorize the execution and delivery of the Loan Documents has been
taken. The Loan Documents have been duly executed and delivered by
AMS. Each of the Loan Documents constitutes a legal, valid and
binding obligation enforceable against AMS as a Borrower in accordance
with its terms.
III. The Guaranty has been duly executed and delivered by
Guarantor, and the Guaranty constitutes the legal, valid and binding
obligation of Guarantor, enforceable against Guarantor in accordance
with its terms.
IV. No authorization, consent, approval, license,
exemption of or filing or registration with any Virginia or New York
court or any Virginia or New York governmental department,
commission, board, bureau, agency or other instrumentality and no
corporate filing by AMS or consent by the shareholders of AMS under
Delaware General Corporation Law (collectively, the "Consents") is or
will be necessary for the valid execution, delivery or performance by
AMS of the Loan Agreement, the Guaranty and each of the other Loan
Documents, or for the payment to Lenders of any sums due under such
documents, except for Consents previously obtained.
The opinions set forth in this letter are subject to the
following additional qualifications:
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A. Our opinions herein as to the qualifications and good
standing of AMS are solely based upon the good standing certificates
issued by the applicable state regulatory authority, and are rendered
as of the date of the applicable certificate.
B. Our opinions are subject to the effects of applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, fraudulent transfer and other laws or equitable principles
relating to or affecting the rights of debtors, creditors or other
obligees generally.
C. Our opinions are subject to the effects of the
exercise of judicial discretion and applicable principles of equity,
whether such principles are applied by a court of equity or a court of
law, including, without limitation, such principles relating to the
availability of specific performance and other equitable remedies.
D. Enforceability may be limited to the extent that
remedies are sought with respect to a breach that a court concludes is
not material or does not adversely affect the Lenders.
E. Notwithstanding language in the Loan Documents that
may imply otherwise, a court of equity could enjoin a Lender from
enforcing its remedies under the Loan Documents by reason of any
unconscionable or inequitable conduct by the Lender, or if there are
equitable defenses, defenses arising from the Lender's failure to act
in accordance with the terms and conditions of the Loan Documents,
defenses arising as a consequence of the passage of time, defenses
arising as a result of the Lender's failure to act reasonably or in
good faith in attempting to exercise its remedies, or any other
similar defenses.
F. The provisions regarding the remedies available to a
Lender on default as set forth in the Loan Documents are subject to
certain procedural and other requirements which, with regard to
several of the remedies, are not reflected in the Loan Documents.
These requirements affect and may restrict rights and remedies stated
in the Loan Documents to be available to the Lender.
G. We express no opinion on the enforceability of any
provisions of the Loan Documents that entitle a Lender, as a matter of
right, after the occurrence of a default, to cause the appointment of
a receiver or to exercise powers of attorney granted to it.
H. We express no opinion on the enforceability of any
provisions of the Loan Documents: (i) imposing increased interest
rates and/or late payment charges upon delinquency in payment or upon
the occurrence of a default, to the extent such provisions may be
deemed to constitute penalties, or (ii) under which AMS as a Borrower
or as Guarantor may be obligated to pay legal and other professional
fees incurred by a Lender or the cost of collection following a
default, to the extent a court could conclude such fees are
unreasonable, are inequitable or constitute a penalty.
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I. We express no opinion on the enforceability of any
provisions of the Loan Documents under which AMS as Borrower or
Guarantor waives any rights afforded under any statute or
constitutional provision or by which any of the parties waives any
rights afforded under applicable law after a default, including,
without limitation, any waiver of the right to a jury trial or of the
right to receive consequential and punitive damages, or any provisions
of the Loan Documents under which any applicable statutes of
limitations are tolled or waived.
J. We express no opinion on the enforceability of any
provisions of the Loan Documents that provide that the provisions of
any of the Loan Documents are severable, to the extent that any
material provisions thereof is found to be unenforceable.
K. We express no opinion on the enforceability of the
prepayment provisions, including any yield maintenance premium,
contained in the Loan Documents.
L. Our opinion is as of the date hereof and is based
upon and limited to laws and regulations as in effect on the date of
this letter. We assume no obligation to update the opinions set forth
herein.
M. Except to the extent expressly set forth above, (i)
in rendering the opinions set forth herein, we have relied upon the
assumptions set forth in Section 4 of the Third-Party Legal Opinion
Report, including the Legal Opinion Accord, of the Section of Business
Law of the American Bar Association, dated 1991 (the "Accord"), (ii)
this opinion does not address the legal issues set forth in Section 19
of the Accord, and (iii) this opinion is subject to the General
Qualifications as defined in Section 11 of the Accord.
The opinions expressed in this letter are solely for the use
of the Lenders. These opinions may not be relied on by or distributed to any
other persons without our express prior written approval. The opinions
expressed in this letter are limited to the matters set forth in this letter,
and no other opinions may be inferred beyond the matters expressly stated.
Very truly yours,
SHAW, PITTMAN, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇
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EXHIBIT M
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Multi-Currency Revolving Credit and
Term Loan Agreement dated as of _______________, 1996, by and among American
Management Systems, Incorporated, various of its Subsidiaries, the Lenders
named therein, Wachovia Bank of Georgia, N.A., as Administrative Agent, and
NationsBank, N.A., as Documentation Agent, as from time to time amended,
modified, supplemented, renewed, or extended (the "Loan Agreement"). Any term
used herein that is defined in the Loan Agreement shall have the same meaning
when used herein.
1. The Assignor hereby sells and assigns, without
recourse, to the Assignee, and the Assignee hereby purchases and assumes,
without recourse, from the Assignor, effective as of the Effective Date set
forth below, the interests set forth below (the "Assigned Interest") in the
Assignor's rights and obligations under the Loan Agreement, including, without
limitation, the interests set forth below in the Commitment of the Assignor on
the Effective Date and the Loans owing to the Assignor which are outstanding on
the Effective Date, together with unpaid interest accrued on the assigned Loans
to the Effective Date and the amount, if any, set forth on the reverse hereof
of the Fees accrued to the Effective Date for the account of the Assignor.
Each of the Assignor and the Assignee hereby makes and agrees to be bound by
all the representations, warranties and agreements set forth in Section
13.13(b) of the Loan Agreement, a copy of which has been received by each such
party. From and after the Effective Date (i) the Assignee shall be a party to
and be bound by the provisions of the Loan Agreement and, to the extent of the
interests assigned by this Assignment and Acceptance, have the rights and
123
obligations of a Bank thereunder and under the Loan Documents and (ii) the
Assignor shall, to the extent of the interests assigned by this Assignment and
Acceptance, relinquish its rights and be released from its obligations under
the Loan Agreement.
2. This Assignment and Acceptance is being delivered to
the Administrative Agent together with (i) the Notes evidencing the Loans
included in the Assigned Interest, (ii) if the Assignee is organized under the
laws of a jurisdiction outside the United States, the forms specified in
Section 13.13(b) of the Loan Agreement, duly completed and executed by such
Assignee, (iii) if the Assignee is not already a Lender under the Loan
Agreement, an Administrative Questionnaire in the form of Exhibit __ to the
Loan Agreement, and (iv) a processing and recordation fee of $_______________.
3. This Assignment and Acceptance shall be governed by
and construed in accordance with the laws of the State of New York without
reference to its conflicts of laws principles or provisions.
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Date of Assignment:
-------------------------------------------
Legal Name of Assignor:
-------------------------------------------
Legal Name of Assignee:
-------------------------------------------
Assignee's Address for Notices:
-------------------------------------------
Effective Date of Assignment (may
not be fewer than 5 Business Days
after the Date of Assignment):
-------------------------------------------
Percentage Assigned of Facility and
Commitment Thereunder (set forth,
to at least 8 decimals, as a percentage
of the Facility and the aggregate
Facility Principal Amount Assigned Commitments of all Lenders)
-------- ------------------------- ----------------------------------
----------------- ---------------------------------- ----------------------------------
Commitment: $ ( %)
--------------- -----
Assigned:
------------------------------------------
Loans:
------------------------------------------
Fees Assigned (if any):
------------------------------------------
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The terms set forth above are hereby agreed to:
Accepted:
, as Assignor WACHOVIA BANK OF
---------------------------------- GEORGIA, N.A., as Administrative Agent
By: By:
----------------------------------------------- ------------------------------------------------
Name: Name:
--------------------------------------------- ---------------------------------------------
Title: Title:
-------------------------------------------- --------------------------------------------
, as Assignee [NAME OF BORROWER]
----------------------------------------
By: By:
----------------------------------------------- -----------------------------------------------
Name: Name:
--------------------------------------------- ---------------------------------------------
Title: Title:
-------------------------------------------- --------------------------------------------
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EXHIBIT N
ADMINISTRATIVE QUESTIONNAIRE
____________________ (Company)
$100,000,000 Multi-Currency Revolving Credit and Term Loan Agreement
Please provide the following administrative details with
respect to your participation in the Multi-Currency Revolving Credit and Term
Loan Agreement (the "Loan Agreement"):
1. Identification. The full name (indicating
punctuation and upper and lower case letters), address, contact, and
telephone, telex, and fax numbers of your institution as they are to
appear in documentation.
2. Payment instructions. The name, address and account
numbers, together with any necessary reference, of your
(correspondent) banks for payment of fees, interest and principal
under the Loan Agreement. Unless individual details are provided, it
will be assumed that all such items are to be paid to the same
account.
3. Notice. The name, address, and telephone, telex, and
fax numbers of the Person to whom notices should be sent upon receipt
from the borrower.
Please direct your responses regarding administration details
to the attention of _______________ at Wachovia Bank of Georgia, N.A.,
________________.
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SCHEDULE 2.10
The following is a description of the single existing Letter of Credit issued
by NationsBank, N.A. pursuant to the Second Amended and Restated Multi-Currency
Revolving Credit and Term Loan Agreement:
DATE:May 22, ▇▇▇▇ ▇▇▇▇▇▇: $1,000,000
APPLICANT: FOR THE ACCOUNT OF:
American Management Systems, Inc. AMS Technical Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BENEFICIARY:
Bank Hapoalim
Tel Aviv, Israel
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ATTACHMENT A
AUTHORIZATION MATRIX
The following individuals have been designated by the
Borrowers as individuals authorized to execute and deliver Notices of Borrowing
on behalf of the Borrowers in connection with requests for Revolving Credit
Loans and the signatures set forth opposite their respective names are their
respective genuine signatures:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------