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SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
THIS AMENDMENT is entered into as of August 10, 2001, between
AFFILIATED COMPUTER SERVICES, INC., a Delaware corporation ("BORROWER"),
Lenders, ▇▇▇▇▇ FARGO BANK TEXAS, NATIONAL ASSOCIATION, as Administrative Agent
(in such capacity, herein so called) and Co-Lead Arranging Agent for Lenders,
BANK ONE, N.A., as Syndication Agent and Co-Lead Arranging Agent for Lenders,
SUNTRUST BANK, as Documentation Agent for Lenders, and THE BANK OF
TOKYO-MITSUBISHI, LTD., as Co-Agent for Lenders, and Subsidiary Guarantors.
Whereas, Borrower, Subsidiary Guarantors, Agents and Lenders are party
to the Credit Agreement (as renewed, extended, and amended, the "CREDIT
AGREEMENT") dated as of May 12, 2000, providing for a revolving credit facility
for general working capital, all more particularly described therein.
Whereas, Borrower has proposed an Acquisition of Lockheed ▇▇▇▇▇▇ IMS
Corporation ("IMS") for aggregate consideration (subject to working capital
adjustment) of $825,000,000, a portion of which shall be financed through a
senior bridge facility between Borrower, Subsidiary Guarantors, Bear ▇▇▇▇▇▇▇
Corporate Lending Inc., as Administrative Agent ("IMS BRIDGE AGENT") and
Syndication Agent, Bear, ▇▇▇▇▇▇▇ & Co. Inc., as Bookrunner and Co-Lead Arranger,
▇▇▇▇▇ Fargo Bank Texas, National Association, as Co-Lead Arranger and
Documentation Agent, and certain other lenders.
Whereas, the Acquisition of IMS shall be consummated in accordance with
the terms of a STOCK PURCHASE AGREEMENT (herein so called) dated June 18, 2001,
executed between Borrower, as purchaser, and Lockheed ▇▇▇▇▇▇ Corporation ("LMC")
and Lockheed ▇▇▇▇▇▇ Investments, Inc. ("LMII"; together with LMC, the
"SELLERS"), as the sellers, covering the Stock of IMS.
Whereas, Borrower has requested certain amendments to, and consents
under, the Credit Agreement to facilitate both the Acquisition of IMS and the
IMS Bridge Facility.
Accordingly, for valuable and acknowledged consideration, Borrower,
Administrative Agent, and Required Lenders agree as follows:
1. TERMS AND REFERENCES. Unless otherwise stated in this amendment (a) terms
defined in the Credit Agreement have the same meanings when used in this
amendment and (b) references to "SECTIONS," "SCHEDULES," and "EXHIBITS" are to
the Credit Agreement's sections, schedules, and exhibits.
2. AMENDMENTS. The Credit Agreement is amended as follows:
2.1 SECTION 1.1 is amended as follows:
(a) New definitions, "ADVANCE," "IMS," "IMS BRIDGE AGENT," "IMS
BRIDGE CREDIT AGREEMENT," "IMS BRIDGE FACILITY," "IMS BRIDGE
FACILITY DOCUMENTS," "INTERCREDITOR AGREEMENT,"
"INVESTMENT," and "SENIOR DEBT" are added to SECTION 1.1 to
read as follows:
(i) ADVANCE means a loan, advance or extension of
credit to, or purchase or commitment to purchase
any evidences of Debt of, another Person.
(ii) IMS means Lockheed ▇▇▇▇▇▇ IMS Corporation.
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CREDIT AGREEMENT AND CONSENT
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(iii) IMS BRIDGE AGENT means Bear ▇▇▇▇▇▇▇ Corporate
Lending Inc., as Administrative Agent under the
IMS Bridge Credit Agreement.
(iv) IMS BRIDGE CREDIT AGREEMENT means that certain
Credit Agreement dated August 10, 2001, executed
by Borrower, Subsidiary Guarantors, Bear ▇▇▇▇▇▇▇
Corporate Lending Inc., as Administrative Agent
and Syndication Agent, Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
as Bookrunner and Co-Lead Arranger, ▇▇▇▇▇ Fargo
Bank Texas, National Association, as Co-Lead
Arranger and Documentation Agent, and certain
lenders.
(v) IMS BRIDGE FACILITY means Debt incurred by
Borrower under the terms of the IMS Bridge Credit
Agreement in the maximum principal amount of
$650,000,000 for the purpose of financing
Borrower's Acquisition of IMS and payment of
related fees and expenses.
(vi) IMS BRIDGE FACILITY DOCUMENTS means the IMS Bridge
Credit Agreement and all agreements, documents,
and instruments ever delivered under or in
connection with the IMS Bridge Facility in favor
of any lender thereto.
(vii) INTERCREDITOR AGREEMENT means that certain
Intercreditor Agreement dated August 10, 2001,
executed among ▇▇▇▇▇ Fargo Bank Texas, National
Association, in its capacity as "Collateral
Agent," Administrative Agent, the IMS Bridge Agent
and Borrower.
(viii) INVESTMENT means, as to any Company, any
Acquisition of, investment in, capital
contribution to, or purchase of Stock, bonds,
notes, debentures, or other securities of, any
other Person.
(ix) SENIOR DEBT means Debt of the Companies which
ranks pari passu (without giving effect to any
Liens) with the Rights of the Credit Parties under
this agreement and the other Loan Documents.
(b) The definition of "APPLICABLE MARGIN" is amended as follows:
(i) PRICING GRID 1 and PRICING GRID 2 are amended and
restated in their entirety as follows:
PRICING GRID 1:
▇▇▇▇▇'▇ RATING AND APPLICABLE
S&P RATING, APPLICABLE MARGIN FOR APPLICABLE
RESPECTIVELY - FUNDED DEBT/ MARGIN FOR LIBOR UTILIZATION MARGIN FOR
BBB-, BAA3, OR LOWER ADJUSTED EBITDA RATIO LOANS FEE COMMITMENT FEE
-------------------- --------------------- ---------------- ----------- --------------
▇▇▇▇▇ ▇ <1.25 .625% .125% .20%
-------------------- --------------------- ---------------- ----------- --------------
▇▇▇▇▇ ▇ >1.25 and <1.75 0.75% .125% .25%
-
-------------------- --------------------- ---------------- ----------- --------------
▇▇▇▇▇ ▇ >1.75 and <2.25 .875% .125% .25%
-
-------------------- --------------------- ---------------- ----------- --------------
SECOND AMENDMENT TO
CREDIT AGREEMENT AND CONSENT
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Level 4 >2.25 and <2.75 1.0% .125% .30%
-
-------------------- --------------------- ---------------- ----------- --------------
▇▇▇▇▇ ▇ >2.75 and <3.00 1.125% .125% .30%
-
-------------------- --------------------- ---------------- ----------- --------------
▇▇▇▇▇ ▇ Ratio not applicable 1.250% .175% .30%
-------------------- --------------------- ---------------- ----------- --------------
PRICING GRID 2:
▇▇▇▇▇'▇ RATING AND APPLICABLE
S&P RATING, APPLICABLE MARGIN FOR APPLICABLE
RESPECTIVELY - FUNDED DEBT/ MARGIN FOR LIBOR UTILIZATION MARGIN FOR
BBB, BAA2, OR HIGHER ADJUSTED EBITDA RATIO LOANS FEE COMMITMENT FEE
-------------------- ---------------------- ---------------- ----------- --------------
▇▇▇▇▇ ▇ <1.25 .625% 0.0% .20%
-------------------- ---------------------- ---------------- ----------- --------------
▇▇▇▇▇ ▇ >1.25 and <1.75 .625% .10% .25%
-
-------------------- ---------------------- ---------------- ----------- --------------
▇▇▇▇▇ ▇ >1.75 and <2.25 0.75% .10% .25%
-
-------------------- ---------------------- ---------------- ----------- --------------
▇▇▇▇▇ ▇ >2.25 and <2.75 .875% .125% .30%
-
-------------------- ---------------------- ---------------- ----------- --------------
▇▇▇▇▇ ▇ >2.75 and <3.00 1.125% .125% .30%
-
-------------------- ---------------------- ---------------- ----------- --------------
▇▇▇▇▇ ▇ Ratio not applicable 1.250% .175% .30%
-------------------- ---------------------- ---------------- ----------- --------------
(ii) The paragraph immediately following PRICING GRID 2
is amended and restated in its entirety as
follows:
Commencing upon the closing of the Acquisition of
IMS and funding of the IMS Bridge Facility, the
Applicable Margin in each Pricing Grid referenced
above (herein so called) shall be Level 6 until
the date of full and final payment and
extinguishment of the IMS Bridge Facility and,
notwithstanding anything contained herein to the
contrary, the Funded Debt/Adjusted EBITDA Ratio
shall be calculated on such date on a pro forma
basis after giving effect to the final payment of
the Bridge Facility and based upon the Companies'
Financials then most recently delivered to Lenders
under SECTION 8.1 to determine the Applicable
Margin to be charged on and after such date until
the next quarterly calculation.
(c) The definition of "CURRENT MATURITIES OF LONG-TERM DEBT" is
amended and restated in its entirety as follows:
CURRENT MATURITIES OF LONG-TERM DEBT means, as of any date,
the aggregate amount of all regularly scheduled principal
payments and capitalized lease payments on all long-term
Debt of the Companies that are due and payable within twelve
(12) months of such date but excluding: (a) the Revolving
Facility; and (b) the IMS Bridge Facility.
(d) The definition of "FOREIGN STOCK PLEDGE" is amended and
restated in its entirety as follows:
FOREIGN STOCK PLEDGE means a Lender Lien in 66 1/3rd% of the
Voting Stock of a Foreign Subsidiary, evidenced by a
Security Document.
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CREDIT AGREEMENT AND CONSENT
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(e) The definition of "MATERIAL ADVERSE EVENT" is amended and
restated in its entirety as follows:
MATERIAL ADVERSE EVENT means any circumstance, development
or event that, individually or collectively, is reasonably
expected to result (at any time before the Commitments are
fully canceled or terminated and the Obligation is fully
paid and performed) in any (a) impairment of (i) the ability
of the Obligors, taken as a whole, to perform any of their
payment or other material obligations under any Loan
Document, (ii) the validity or enforceability of any of the
Loan Documents or the ability of any Credit Party to enforce
any of those obligations or any of their respective Rights
under the Loan Documents, or (b) material and adverse effect
on the business, assets, property or condition (financial or
otherwise) of the Borrower individually, or the Companies as
a whole, since June 30, 2001 (assuming Borrower's
Acquisition of IMS had been consummated on such date).
(f) The definition of NON-GUARANTEEING SUBSIDIARIES is amended
and restated in its entirety as follows"
NON-GUARANTEEING SUBSIDIARIES means Domestic Subsidiaries
which are not Subsidiary Guarantors, and Foreign
Subsidiaries which neither are (a) a Subsidiary Guarantor,
nor (b) the subject of a Foreign Stock Pledge.
(g) The definition of PERMITTED ACQUISITION is amended as
follows:
(i) SUBPARAGRAPH (a) is amended as follows:
(A) The lead in clause to SUBPARAGRAPH (a)
to this definition is amended and
restated as follows:
(a) Acquisitions by any Company
with respect to which each of
the following requirements
shall have been satisfied:
(B) SUBPARAGRAPH (a)(iv)(a) is amended and
restated in its entirety as follows:
(A) no event has occurred and is
continuing or circumstance exists which
would, upon the lapse of any grace or
cure period in SECTION 11.2, result in a
Default, or
(C) SUBPARAGRAPH (a)(vii) is amended and
restated in its entirety as follows:
(vii) to the extent required to comply
with SECTIONS 5.1(a) or (b),
Administrative Agent shall have
received, in form and substance
satisfactory to Administrative Agent,
such documents and instruments as it
shall require to evidence: (i) the
joinder of any After-Acquired Subsidiary
to the Subsidiary Guaranty promptly
after the date of its Acquisition, or
(ii) with respect to any Foreign
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CREDIT AGREEMENT AND CONSENT
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Subsidiary, a Foreign Stock Pledge,
within sixty (60) days after the date of
its Acquisition; and
(D) The word "and" is added to the end of
SUBPARAGRAPH (B); and
(ii) A new SUBPARAGRAPH (c) is added which reads as
follows:
(c) Acquisitions by one Company of, or - with
respect to purchases of assets, businesses or
divisions - from a Person that, prior to such
Acquisition, is a Company.
(h) The definition of "PERMITTED DEBT" is amended as follows:
(i) SUBPARAGRAPH (f) is amended and restated in its
entirety as follows:
(f) Debt owed to, and guarantees or contingent
liabilities with respect to obligations of, any
Company;
(ii) SUBPARAGRAPHS (h) and (i) are amended and restated
in their entirety as follows:
(h) The Subordinated Notes and any other
subordinated Debt to the extent the Rights with
respect to such Debt rank at all times subordinate
and inferior to the Rights of the Credit Parties
under the Loan Documents on terms which are no
less favorable to the Credit Parties than those
which are customary for high-yield subordinated
debt securities;
(i) Debt arising under the IMS Bridge Credit
Agreement (and any refinancings thereof
consummated in compliance with SECTION 8.6),
provided that the aggregate outstanding principal
amount of such Debt may not exceed $650,000,000;
(iii) New SUBPARAGRAPHS (j) and (k) are added which
shall read as follows:
(j) Debt (other than other Permitted Debt) arising
as a result of a Lien described in SUBPARAGRAPH
(l) of the definition of Permitted Liens, provided
that (i) such Debt (other than other Permitted
Debt) shall be repaid within ninety (90) days of
the relevant Permitted Acquisition (unless such
Debt is otherwise permitted under any clause of
this definition), and (ii) the aggregate amount of
such Debt (other than other Permitted Debt) may
not exceed the fair market value of the assets
being acquired in the relevant Permitted
Acquisition; and
(k) other Debt (other than other Permitted Debt),
provided that the aggregate principal amount of
such Debt, together with the sum of (i) the
outstanding principal amount of the IMS Bridge
Facility at the time such Debt is issued, plus
(ii) the outstanding principal amount of any
Accounts Receivable Financing permitted by SECTION
9.10(c) at the time such Debt is issued, plus
(iii) the aggregate outstanding principal amount
of any other
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CREDIT AGREEMENT AND CONSENT
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Debt (not otherwise permitted under this
definition) at the time such Debt is issued, does
not exceed the Other Debt Basket at such time.
SECOND AMENDMENT TO
CREDIT AGREEMENT AND CONSENT
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(i) The definition of "PERMITTED LIENS" is amended as follows:
(i) The word "and" at the end of SUBPARAGRAPH (j) is
deleted;
(ii) The period at the end of SUBPARAGRAPH (k) is
replaced with a semi-colon; and
(iii) New SUBPARAGRAPHS (l) and (m) are added which
shall read as follows:
(l) Liens assumed in connection with any Permitted
Acquisition, which Liens are in existence at the
time of such Permitted Acquisition, not created in
contemplation of such Permitted Acquisition, and
do not cover any assets other than the assets
acquired pursuant to such Permitted Acquisition;
provided such assumed Liens are released and
terminated within ninety (90) days following the
effective date of such Permitted Acquisition (or
such Lien is otherwise permitted under any other
clause of this definition); and
(m) Liens securing the IMS Bridge Facility only to
the extent such Liens are pari passu in all
respects with Lender Liens (subject to the terms
and conditions of the Intercreditor Agreement) and
such Liens attach only to those assets covered by
the Lender Liens.
(j) The definition of "SECURITY DOCUMENTS" is amended and
restated in its entirety as follows:
SECURITY DOCUMENTS means, collectively, any
Foreign Stock Pledge substantially in the form of EXHIBIT G
(or in such other form as may be acceptable to
Administrative Agent), together with all related financing
statements and stock powers, in form and substance
satisfactory to Administrative Agent and its legal counsel,
executed and delivered by any Person in connection with this
agreement, such Foreign Stock Pledge to create a Lender Lien
on the property described therein, as amended, supplemented
or restated.
(k) The definition of "SUBORDINATED NOTES" is amended and
restated in its entirety as follows:
SUBORDINATED NOTES means, collectively, (i)
Borrower's 4% Convertible Subordinated Notes Due March 15,
2005, in the principal amount of $230,000,000; (ii)
Borrower's 3.5% Convertible Subordinated Notes Due February
15, 2006, in the principal amount of $316,990,000; and (iii)
any notes issued by Borrower in exchange for those notes if
the notes so issued are subject to the same terms as the
original Subordinated Notes.
(l) The definition of "SUBSIDIARY GUARANTORS" is amended and
restated in its entirety as follows:
SUBSIDIARY GUARANTORS means the Subsidiaries of
Borrower from time to time parties to this agreement, and
SUBSIDIARY GUARANTOR means any one of the Subsidiary
Guarantors.
SECOND AMENDMENT TO
CREDIT AGREEMENT AND CONSENT
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2.2 SECTION 2.1(c) is amended and restated in its entirety as follows:
(c) Borrower may direct all or part of any Borrowing to, or
direct the issuance of LCs for the account of:
(i) Domestic Subsidiaries which are Subsidiary
Guarantors;
(ii) Foreign Subsidiaries which are Subsidiary
Guarantors or the subject of a Foreign Stock
Pledge, provided that the then-outstanding amount
of all such Borrowings, and the undrawn face
amount of LCs so issued, to such Foreign
Subsidiaries (which Borrowings have not been
repaid to the Borrower by such Foreign
Subsidiaries, or which LCs have not expired or
been cancelled) do not at the time of such
Borrowing or issuance exceed: (A) with respect to
any such individual Foreign Subsidiary, fifteen
percent (15%) of the Companies' Adjusted EBITDA
(based on the twelve (12) calendar months most
recently then-ended (for which financial
statements are available) prior to the date of
determination), and (B) with respect to all such
Foreign Subsidiaries, twenty-five percent (25%) of
the Companies' Adjusted EBITDA (based on the
twelve (12) calendar months most recently
then-ended (for which financial statements are
available) prior to the date of determination)
calculated;
(iii) any other Person (including but not limited
Non-Guaranteeing Subsidiaries) provided that the
then outstanding amount of all such Borrowings and
LCs so issued (which have not been repaid to the
Borrower by such Foreign Subsidiaries or which LCs
have not terminated or expired, as applicable) do
not at the time of such Borrowing or issuance
exceed: (A) with respect to any such other Person,
seven and one-half percent (7.5%) of the
Companies' Adjusted EBITDA (based on the twelve
(12) calendar months most recently then-ended (for
which financial statements are available) prior to
the date of determination), and (B) with respect
to all such other Persons, fifteen percent (15%)
of the Companies' Adjusted EBITDA (based on the
twelve (12) calendar months most recently
then-ended (for which financial statements are
available) prior to the date of determination);
and
2.3 SECTION 4.5(a) is amended and restated in its entirety as follows:
(a) For so long as the IMS Bridge Facility remains unpaid, the
product of (i) the Applicable Margin for Utilization Fee,
times (ii) the daily Commitment Usage for each day, divided
by (iii) 360; and
2.4 SECTION 5.1 is amended as follows:
(a) SECTIONS 5.1(b) and (c) are amended and restated in their
entirety as follows:
(b) IF at the end of any Fiscal Quarter:
(i) the Net Worth of Non-Guaranteeing
Subsidiaries: (A) exceeds, with respect
to any individual Non-Guaranteeing
Subsidiary, five percent
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(5%) of Total Net Worth, or (B) exceeds,
with respect to Non-Guaranteeing
Subsidiaries in the aggregate, ten
percent (10%) of Total Net Worth; or
(ii) the Adjusted EBITDA of all
Non-Guaranteeing Subsidiaries, based on
the Rolling Period most recently
then-ended, exceeds ten percent (10%) of
the Companies' Adjusted EBITDA;
THEN, Borrower shall, within fifteen (15) days of
such determination, either (x) cause a sufficient
number of Non-Guaranteeing Subsidiaries to become
Subsidiary Guarantors such that none of the
thresholds in CLAUSES (I) or (II) above are
exceeded and/or (y) cause a sufficient number of
Foreign Stock Pledges to be delivered such that
none of the thresholds set forth in CLAUSES (I) or
(II) above are exceeded.
(c) IF, (i) as a result of any disposition permitted
under SECTION 9.10, more than 50% of the Voting
Stock of a Subsidiary Guarantor (or a Foreign
Subsidiary the Stock of which is the subject of a
Foreign Stock Pledge) is transferred, sold or
assigned to a Person who is not an Affiliate, or
(ii) a Subsidiary Guarantor (or a Foreign
Subsidiary the Stock of which is the subject of a
Foreign Stock Pledge) is the subject of a
Permitted IPO, THEN Administrative Agent shall -
provided no Default or Potential Default is then
in existence - release the Subsidiary Guaranty
with respect to such Subsidiary Guarantor, or the
Foreign Stock Pledge with respect to such Foreign
Subsidiary.
(b) A new SECTION 5.1(d) is added as follows:
(d) Borrower shall not cause a Subsidiary to guarantee
the IMS Bridge Facility, or create (or cause to be
created) any Lien to secure the IMS Bridge
Facility without contemporaneously causing such
Subsidiary to deliver a corresponding Subsidiary
Guaranty, or creating (or causing to be created) a
corresponding security interest, in favor of
Lenders (any such security interest to be shared
equally and ratably in accordance with the
Intercreditor Agreement).
2.5 SECTION 8.6 is amended and restated in its entirety as follows:
8.6 Payment of Obligation. Each Company shall promptly pay
(or renew and extend) all of its Debt as it becomes due (other than
the Subordinated Notes and any other Debt owed to any Person other
than Senior Lenders (hereafter defined), the validity or amount of
which is being contested in good faith by appropriate proceedings
diligently conducted and a reserve or other provision required by GAAP
has been made), provided, however, IF the Borrower desires to renew,
extend, repay or refinance the IMS Bridge Facility with Senior Debt
THEN, Borrower may do so only if: (a) after giving effect to such
renewal, extension, repayment or refinancing, (i) Borrower is in pro
forma compliance with the financial covenants set forth in SECTION 10;
and (ii) the Funded Debt/Adjusted EBITDA Ratio is less than 3.00; (b)
the maturity of such Senior Debt extends for at least one year after
the Maturity Date; (c) no Default or Potential Default is then in
existence and continuing; and (d) at least
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CREDIT AGREEMENT AND CONSENT
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five (5) days prior to such renewal, extension repayment or
refinancing, Borrower has delivered to Administrative Agent a
certificate executed by a Responsible Officer certifying as true and
correct, or demonstrating (as applicable), the foregoing clauses (A)
through (C). For purposes of this SECTION 8.6, "Senior Lenders" means
the Lenders and the lenders under the IMS Bridge Facility.
2.6 SECTION 8.8 is amended to add the following parenthetical phrase at
the end of CLAUSE (A), "(except as otherwise permitted under SECTIONS 9.10 and
9.11)".
2.7 SECTION 9.3(a) is amended and restated in its entirety as follows:
(a) Loans and Advances. No Company may, directly or indirectly,
make any Advance to any other Person, other than:
(i) Advances among Companies and other Persons as set
forth below:
(A) Advances BETWEEN (x) Borrower or any
Subsidiary Guarantor, AND (y) Domestic
Subsidiaries that are Subsidiary
Guarantors;
(B) Advances BETWEEN (x) Borrower or any
Subsidiary Guarantor, AND (y) any
Foreign Subsidiary that is either a
Subsidiary Guarantor or the subject of a
Foreign Stock Pledge, provided that
Borrower or any Subsidiary Guarantor may
not make, an Advance to any such Foreign
Subsidiary if, at the time of making
such Advance, the amount of aggregate
unpaid Advances BY Borrower or any
Subsidiary Guarantor, TO:
(1) any such Foreign Subsidiary EXCEEDS
fifteen percent (15%) of the Companies'
Adjusted EBITDA (based on the twelve
(12) calendar months most recently
then-ended (for which financial
statements are available) prior to the
date of determination), or
(2) all such Foreign Subsidiaries
EXCEEDS twenty-five percent (25%) of the
Companies' Adjusted EBITDA (based on the
twelve (12) calendar months most
recently then-ended (for which financial
statements are available) prior to the
date of determination);
(C) Advances BETWEEN (x) Borrower, any
Subsidiary Guarantor, or any Foreign
Subsidiary the subject of a Foreign
Stock Pledge, AND (y) any other Person,
provided that Borrower, any such
Subsidiary Guarantor, or any such
Foreign Subsidiary, may not make an
Advance to any such Person if, at the
time of making such Advance, the amount
of aggregate unpaid Advances made BY
Borrower, any Subsidiary Guarantor or
any such Foreign Subsidiary, TO:
(1) any such other Person EXCEEDS seven
and one-half percent (7.5%) of the
Companies' Adjusted EBITDA (based on the
twelve (12) calendar months most
recently then-ended (for which financial
statements are available) prior to the
date of determination), or
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CREDIT AGREEMENT AND CONSENT
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(2) all such other Persons EXCEEDS
fifteen percent (15%) of the Companies'
Adjusted EBITDA (based on the twelve
(12) calendar months most recently
then-ended (for which financial
statements are available) prior to the
date of determination);
(D) In addition to other Advances permitted
under this SECTION 9.3(a)(i), (x)
Advances BETWEEN Non-Guaranteeing
Subsidiaries, and (y) Advances BETWEEN
Foreign Subsidiaries which are not
Subsidiary Guarantors, but which are the
subject of a Foreign Stock Pledge;
(E) Provided that, in the case of Advances
by any Subsidiary that is not a
Subsidiary Guarantor to any other
Company permitted in this SECTION 9.3,
the repayment Rights of such Subsidiary
making such Advance shall (at all times)
be subject, subordinate and inferior to
the Rights of the Lenders under the Loan
Documents in accordance with a
subordination agreement in form and
substance acceptable to Administrative
Agent;
(ii) trade and customer accounts or notes receivable
which are for goods furnished or services rendered
in the ordinary course of business and are payable
in accordance with customary trade terms;
(iii) notes received by a Company as consideration from
an asset disposition permitted under SECTION 9.10;
(iv) Advances existing on the Closing Date and
identified on SCHEDULE 9.2, and renewals and
extensions (but no increases) thereof;
(v) Advances resulting from Investments permitted
under SECTION 9.3(b)(xix) and (xx); and
(vi) Advances by a Company with its own funds, to
another Company; provided that such Advance may
not exceed, at the time such Advance is made, an
amount equal to the difference between (i) the
Companies' consolidated cash on hand reflected in
the balance sheet of Borrower and its consolidated
Subsidiaries at such time, minus (ii) the
principal amount then outstanding under the
Revolving Facility.
2.8 SECTION 9.3(b) is amended as follows:
(a) the beginning phrase is deleted and replaced with the
following:
"No Company may, directly or indirectly, make any
Acquisition, or any Investment (other than Advances which
are governed by SECTION 9.3(a) above) in any Person, other
than";
(b) The text in SECTION 9.3(b)(xii) is replaced with the phrase
"[Intentionally Deleted]".
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CREDIT AGREEMENT AND CONSENT
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(c) SECTIONS 9.3(b)(xiii), (xiv), (xv), (xvi) and (xvii) are
amended and restated in their entirety as follows:
(xiii) Investments in Subsidiary Guarantors; (xiv)
Investments in Non-Guaranteeing Subsidiaries provided that
neither Borrower nor any Subsidiary Guarantor may make an
Investment in a Non-Guaranteeing Subsidiary IF, at the time
of making such Investment, the amount of aggregate
Investments made by the Borrower and Subsidiary Guarantors,
in Non-Guaranteeing Subsidiaries exceeds (A) with respect to
any individual Non-Guaranteeing Subsidiary, seven and
one-half percent (7.5%) of the Companies' Adjusted EBITDA,
or (B) with respect to the aggregate of all such
Non-Guaranteeing Subsidiaries, fifteen percent (15%) of the
Companies' Adjusted EBITDA, in each instance the calculation
of Adjusted EBITDA under SUBPARAGRAPHS (a) and (b)
immediately preceding to be based on the twelve (12)
calendar months most recently then-ended (for which
financial statements are available) prior to the date of
determination; (xv) Permitted Acquisitions; (xvi)
Investments in Subsidiaries formed after the Closing Date
provided each such Subsidiary complies with SECTION 8.14;
(xvii) (A) in addition to Permitted Acquisitions, Stock
acquired by any Company in any other Person, and/or (B)
Investment in any Foreign Subsidiary subject to a Foreign
Stock Pledge; provided that at the time such Stock is
acquired, or such Investment is made, the sum of (W) the
aggregate consideration paid (including cash and Stock of a
Company) for such Stock or the aggregate Investment made in
such Foreign Subsidiary, plus (X) the aggregate of such
consideration paid for all such Stock since the Closing
Date, plus (Y) the aggregate of all such Investments
(excluding Investments otherwise permitted in this SECTION
9.3(b)) made in Foreign Subsidiaries subject to a Foreign
Stock Pledges since the Closing Date, does not exceed (Z)
20% of Total Net Worth (calculated on a proforma basis
including such Stock which is the subject of the acquisition
or including such Investments being made in such Foreign
Subsidiaries);
(d) SECTION 9.3(b) is amended by adding the following new
provisions:
(xviii) any Investment made as a result of the receipt of
non-cash consideration from a sale of assets that was made
in compliance with this agreement;
(xix) Investments in securities of trade creditors,
wholesalers, suppliers, or customers received pursuant to
any plan of reorganization or similar arrangement; and
(xx) Investments received in settlement of trade accounts
receivables created in the ordinary course of business and
owing to any Company or in satisfaction of judgments or
claims.
2.9 SECTION 9.4(b) is amended and restated in its entirety as follows:
(b) enter into or permit to exist any arrangement or agreement
that directly or indirectly prohibits any Company from
creating or incurring any Lien on any of its assets except:
(i) the Loan Documents, (ii) any lease that places a Lien
prohibition on only the property subject to that lease,
(iii) arrangements and agreements that apply only to
property subject to Permitted Liens, (iv) any arrangement or
agreement relating to Senior Debt which is Permitted Debt,
and (v) Debt permitted under
SECOND AMENDMENT TO
CREDIT AGREEMENT AND CONSENT
12
13
SUBPARAGRAPH (h) of the definition of Permitted Debt
(provided the arrangements and agreements evidencing such
Debt permit all Senior Debt (and any refinancings thereof or
increases thereto) to be secured by Liens).
2.10 SECTION 9.8 is amended as follows:
(a) SUBPARAGRAPH (a) is deleted and replaced with the phrase
"[Intentionally Deleted]".
(b) SUBPARAGRAPH (b) is amended and restated in its entirety as
follows:
(b) Borrower may not, nor may Borrower permit any Subsidiary
to, directly or indirectly, issue, sell, or otherwise
dispose of any shares of Stock of any Subsidiary of any
class, or any securities convertible into or exchangeable
for any such shares except (i) issuances, sales and other
dispositions of Stock of a Subsidiary, provided that after
giving effect to such issuance, sale or other disposition,
such Subsidiary will continue to be a Subsidiary of
Borrower, (ii) as permitted under SECTION 9.10, or (iii)
Stock under existing employee-stock option plans of
Borrower.
2.11 SECTION 9.9(c) is amended and restated in its entirety as follows:
(c) Subsidiaries may (i) declare dividends (subject to
applicable Law) to Borrower or another Subsidiary from time
to time, or make Advances in compliance with SECTION 9.3.
2.12 SECTION 9.10 is amended as follows:
(a) SUBPARAGRAPH (d) is amended as follows:
(i) The phrase "in the aggregate" immediately prior to
SUBPARAGRAPH (i) is deleted;
(ii) SUBPARAGRAPH (ii) is amended and restated in its
entirety as follows:
(ii) exceed in the aggregate for all such
dispositions during each fiscal year thereafter,
ten percent (10%) of Borrower's Net Worth for the
immediately preceding fiscal year, plus 10% of the
amount of any equity issuance since the end of the
prior fiscal year;
(b) SUBPARAGRAPH (e) is amended and restated in its entirety as
follows:
(e) a Permitted IPO; or
(c) A new SUBPARAGRAPH (f) is added, which shall read as
follows:
(f) issuances, sales and other dispositions of Stock
of a Subsidiary permitted under SECTION 9.8(b)(i).
SECOND AMENDMENT TO
CREDIT AGREEMENT AND CONSENT
13
14
2.13 SECTION 9.11 is amended and restated in its entirety as follows:
9.11 Mergers, Consolidations, and Dissolutions. No Company
may liquidate, wind up, dissolve, merge or consolidate with any other
Person except: (i) as may be permitted under SECTIONS 9.8(b) or 9.10,
(ii) any merger or consolidation of a Subsidiary into another
Subsidiary or into Borrower, (iii) any liquidation, dissolution or
conversion of a Subsidiary, or (iv) a Permitted Acquisition structured
as a merger with Borrower, provided Borrower is the surviving entity
(after giving effect to the merger).
2.14 SECTION 9.14 is amended and restated in its entirety as follows:
9.14 New Businesses. No Company may, directly or indirectly,
engage in any business which is substantially different from the
businesses in which the Companies are presently engaged, and the
Companies shall continue to conduct the businesses in which they are
presently engaged in substantially the same fashion (including,
without limitation, contracts for compute cycles), other than the
engagement of a Company in a new business (through an Acquisition of
an existing business permitted under the terms of this agreement or
the formation of a de novo business permitted under the terms of this
agreement) which does not require: (a) any individual expenditure or
investment by the Companies in excess of an amount equal to 7.5% of
the consolidated assets of the Companies immediately prior thereto and
which does not involve a business which in the immediately preceding
twelve (12) calendar months had gross revenues in excess of an amount
equal to 20% of the consolidated gross revenues of the Companies
during such period; or (b) an aggregate expenditure or investment by
the Companies in excess of an amount equal to (i) 10% of the
consolidated assets of the Companies, or (ii) 30% of gross revenues of
the Companies based on the twelve (12) calendar months most recently
then-ended; for purposes of this SECTION 9.14, consolidated assets and
gross revenues shall be determined as of the most recent quarterly
Financials delivered under SECTION 8.1 prior to such expenditure or
investment.
2.15 SECTION 9.18 is amended as follows:
(a) The word "and" is deleted from the end of CLAUSE (b) and
added to the end of CLAUSE (c); and
(b) A new CLAUSE (d) is added which reads as follows:
(d) prepayments for which the prior written consent of
Required Lenders has been obtained.
2.16 SECTION 10.1(c) is amended and restated in its entirety as follows:
(c) fifty percent (50%) of the gross proceeds of any Subject
Securities Issuance (including changes in Net Worth due to
any conversions of Debt permitted under CLAUSE (h) of the
definition of Permitted Debt to Stock of the Borrower, but
excluding gross proceeds received from the exercise of
Rights under existing employee stock option plans of
Borrower) occurring following the Closing Date, plus
SECOND AMENDMENT TO
CREDIT AGREEMENT AND CONSENT
14
15
2.17 SECTION 10.2 is amended and restated in its entirety as follows:
10.2 Funded Debt/Adjusted EBITDA Ratio. The Funded
Debt/Adjusted EBITDA Ratio to ever be more than the ratios set forth
below for the time periods indicated:
FUNDED DEBT/
AT THE END OF ANY FISCAL QUARTER ENDING ADJUSTED EBITDA
DURING THE FOLLOWING TIME PERIODS: RATIO
--------------------------------------------------- ----------------
For the period commencing on the funding of the
IMS Bridge Facility and ending on the first to
occur of: (i) March 31, 2002; or (ii) any Subject 3.50 to 1.00
Securities Issuance on any public market resulting
in net cash proceeds to Borrower of at least
$250,000,000
--------------------------------------------------- ----------------
During all other time periods 3.00 to 1.00
2.18 SECTION 11.10 is amended to delete the parenthetical phrase before
SUBPARAGRAPH (a) and replace it with the following: "(other than the
Obligation, Debt arising under the IMS Bridge Credit Agreement, and
Debt arising under the Subordinated Notes)"
2.19 SECTION 11.14(b)(ii) is amended by replacing the term "Debt" with
"Material Agreement."
2.20 SECTION 11.16 is amended and restated in its entirety as follows:
11.16 IMS Bridge Facility Documents and Subordinated Notes.
With respect to the IMS Bridge Facility Documents or Subordinated
Notes: (i) the occurrence of a default or event of default beyond any
applicable grace or notice and cure periods, (ii) any payment or
prepayment shall become past due beyond any applicable grace or notice
and cure periods under any agreement, document, or instrument executed
or delivered in connection therewith or evidencing same, or (iii) the
maturity of any of such Debt is accelerated or declared to be due and
payable or required to be prepaid (other than regularly scheduled
mandatory prepayments).
2.21 The schedules and exhibits to the Credit Agreement are amended as
follows:
(a) EXHIBIT C-4 (Compliance Certificate) is entirely amended in
the form of - and all references in the Credit Agreement to
EXHIBIT C-4 are changed to - the attached AMENDED EXHIBIT
C-4.
(b) A new EXHIBIT G Pledge Agreement (Foreign Stock Pledge) is
added to the Credit Agreement in the form of the attached
EXHIBIT G.
(c) SCHEDULES 7.3, 7.7, 7.8, 7.14, 7.18, 7.23, and 9.2 are
entirely amended in the form of - and all references in the
Credit Agreement to such schedules are changed to - the
following:
AMENDED SCHEDULE 7.3 - Companies and Names
AMENDED SCHEDULE 7.7 - Company Solvency Schedule
AMENDED SCHEDULE 7.8 - Litigation
SECOND AMENDMENT TO
CREDIT AGREEMENT AND CONSENT
15
16
AMENDED SCHEDULE 7.14 - Affiliate Transactions
AMENDED SCHEDULE 7.18 - Intellectual Property Claims
AMENDED SCHEDULE 7.23 - Contingent Earn-Out Payments
AMENDED SCHEDULE 9.2 - Permitted Debt
3. CONSENT. In addition to the foregoing amendments, and subject to the terms
and conditions contained in this amendment, Administrative Agent and Required
Lenders consent to the following:
3.1 Borrower's Acquisition of IMS pursuant to the terms and
conditions contained in the Stock Purchase Agreement,
provided that the Acquisition (a) has been approved and
recommended by the board of directors of IMS, and (b) is
consummated on or before October 31, 2001.
3.2 Borrower's incurrence of Debt under the IMS Bridge Credit
Agreement (and any refinancing of such Debt in accordance
with SECTION 8.6). The parties hereto acknowledge that the
IMS Bridge Credit Agreement is in compliance with SECTION
7.22.
3.3 With respect to Borrower's outstanding 4% Convertible
Subordinated Notes due March 15, 2005 (the "4% NOTES"), and
notwithstanding anything to the contrary in the Credit
Agreement, the induced conversion of the 4% Notes by
Borrower by either (i) increasing the amount of Stock
issuable upon conversion of the 4% Notes by adjusting the
"Conversion Price" (as defined in the related Indenture
dated as of March 20, 1998, [as in effect on the date
hereof; the "4% INDENTURE"]), or (ii) issuing a notice of
redemption under the 4% Indenture (and repurchasing the 4%
Notes which are not converted prior to the date of
redemption), SO LONG AS, as of the date of issuance of such
notice of redemption:
(a) the average closing price of Borrower's common
stock on the New York Stock Exchange for the
immediately preceding thirty (30) calendar days is
at least equal to 125% of the amount which is
equal to (x) 1,000 divided by (y) the then
applicable "CONVERSION RATE" (as defined in the 4%
Indenture);
(b) the closing price of Borrower's common stock on
the New York Stock Exchange on the business day
immediately preceding the date of issuance of such
notice of redemption is at least equal to 125% of
the amount which is equal to (x) 1,000 divided by
(y) the then applicable Conversion Rate; and
(c) either (x) the sum of (I) the Companies'
consolidated cash on hand reflected in the balance
sheet of Borrower and its consolidated
Subsidiaries as of such date, plus (II) the amount
available to be borrowed under the Revolving
Facility as of such date is at least equal to the
aggregate "REDEMPTION PRICE" (as defined in the 4%
Indenture) (and Borrower shall maintain a
sufficient amount of such liquidity during the
period up to and including the redemption date to
finance its reasonably anticipated liability in
respect of such Redemption Price on such
redemption date) (as defined in the 4% Indenture)
for all such 4% Notes as of such date, or (y)
Borrower shall have arranged financing to pay the
Redemption Price on terms and conditions
satisfactory to the Administrative Agent.
3.4 The Intercreditor Agreement, and the appointment therein of
▇▇▇▇▇ Fargo Bank Texas, National Association, as "Collateral
Agent" for the Lenders, and lenders under the IMS Bridge
Credit Agreement.
SECOND AMENDMENT TO
CREDIT AGREEMENT AND CONSENT
16
17
4. CONDITIONS PRECEDENT. This amendment shall become effective upon satisfaction
in full of each of the following conditions precedent, each in a manner
satisfactory to the Administrative Agent and Required Lenders in their sole
discretion:
4.1 Required Lenders' receipt and satisfaction (as evidenced by
their execution of this amendment) with any and all
financial information delivered to the IMS Bridge Agent,
including (but not limited to) the following:
(a) Audited consolidated financial statements of IMS
and Borrower for the two most recent fiscal years
ended prior to the closing date of the Acquisition
as to which such financial statements are
available;
(b) Unaudited interim consolidated financial
statements (which shall include the Financials of
the Borrower dated as of June 30, 2001 and, in the
case of such Financials, shall have been reviewed
by Borrower's independent accountants) of Borrower
for each quarterly period ended subsequent to the
date of the latest financial statements of
Borrower;
(c) Unaudited interim consolidated balance sheet and
income statement of IMS for the five (5) month
period ending May 31, 2001 (or the six (6) month
period ended June 30, 2001, if available), and for
each fiscal month thereafter as to which such
financial statements are available;
(d) A pro forma consolidated balance sheet of the
Borrower as of June 30, 2001, adjusted to give
effect to the consummation of the Acquisition and
the financings contemplated hereby as if such
transactions had occurred on such date;
(e) A pro forma calculation of the EBITDA of IMS for
the twelve (12) month period ended June 30, 2001,
adjusted to give effect to any cost savings
associated therewith calculated in accordance with
Regulations S-X under the Securities Act of 1933,
as amended; and
(f) Financial projections for the Borrower for fiscal
years ended June 30, 2002 and June 30, 2003.
4.2 Administrative Agent's and Required Lenders' receipt, and
satisfaction (as evidenced by their execution of this
amendment) with the Stock Purchase Agreement and the other
documents governing the Acquisition of IMS, including
purchase and sale documentation, covenants not to compete,
indemnities provided to Borrower, and opinions of counsel
(which shall provide customary assurances regarding the
legal status and authority of Borrower, Sellers, and IMS,
and their respective Subsidiaries, regulatory matters
related thereto, and the Acquisition of the Stock of IMS,
the validity and enforceability of the transaction, and
assurances that Borrower shall have acquired all the Stock
of IMS);
4.3 Administrative Agent's and Required Lenders' receipt, and
satisfaction (as evidenced by their execution of this
amendment) with the form and substance of, the IMS Bridge
Facility Documents, including the Intercreditor Agreement;
4.4 Contemporaneously with the effectiveness of this amendment:
SECOND AMENDMENT TO
CREDIT AGREEMENT AND CONSENT
17
18
(a) Execution and delivery of the IMS Bridge Credit
Agreement by each of the parties thereto
(including - without limitation - Borrower), and
satisfaction of all of the conditions contained
therein; and
(b) Borrower's Acquisition of the Stock of IMS in
accordance with the terms of the Stock Purchase
Agreement, PROVIDED: (i) Administrative Agent
shall have received satisfactory evidence of the
consummation of such Acquisition; and (ii) such
consummation occurs on or before October 31, 2001;
and
4.5 Administrative Agent's receipt of: (i) counterparts of this
amendment executed by Borrower, Subsidiary Guarantors and
Required Lenders; (ii) such documents and instruments as it
shall require to evidence the joinder of IMS to the
Subsidiary Guaranty (in form and substance acceptable to
Administrative Agent); (iii) an amendment fee for the
account of each of the Lenders executing this amendment
equal to 0.25% of the Commitment of each consenting Lender
(PROVIDED, THAT, if the Acquisition of IMS is not
consummated on or before October 31, 2001, such amendment
fee (if previously paid) shall be fully refunded to
Borrower); (iv) payment of fees and expenses incurred by
Administrative Agent and its counsel in connection with the
preparation, negotiation and execution of this amendment,
and (v) each document and other item listed on the attached
ANNEX A.
5. COVENANTS. Borrower covenants and agrees with the Credit Parties that, upon
consummation of the Stock Purchase Agreement, Borrower shall have acquired good
title, free and clear of all Liens, to the Stock of IMS.
6. RATIFICATIONS. Borrower (a) ratifies and confirms all provisions of the Loan
Documents, (b) ratifies and confirms that all guaranties in favor of the Lenders
under the Loan Documents (including, but not limited to, the Subsidiary
Guaranty) are not released, reduced, or otherwise adversely affected by this
amendment and continue to guarantee and assure full payment and performance of
the present and future Obligation, and (c) agrees to perform such acts and duly
authorize, execute, acknowledge, deliver, file, and record such additional
documents, and certificates as Administrative Agent, or any Lender, may
reasonably request in order to create, perfect, preserve, and protect those
guaranties and assurances.
7. REPRESENTATIONS. Borrower represents and warrants to Lenders that as of the
date of this amendment and as of the date of Borrower's Acquisition of IMS:
7.1 All representations and warranties in the Loan Documents are
true and correct in all material respects except to the
extent that (i) any of them speak to a different specific
date, or (ii) the facts on which any of them were based have
been changed by transactions contemplated or permitted by
the Credit Agreement or this amendment;
7.2 No Material Adverse Event, Default or Potential Default
exists;
7.3 With respect to Borrower's Acquisition of IMS: (i) the
making and performance of the related acquisition
agreements, and all other agreements, documents, and actions
required thereunder, will not violate any provision of any
Laws, except where such violation could not be a Material
Adverse Event, and will not violate any provisions of the
Constituent Documents of any Company, or constitute a
default under any agreement by which any Company or its
respective property may be bound, except where such default
could not be a Material Adverse Event; (ii) after giving
effect to this amendment (A) no event has occurred or
circumstance
SECOND AMENDMENT TO
CREDIT AGREEMENT AND CONSENT
18
19
exists which would, upon the lapse of any grace or cure
period in SECTION 11.2, result in a Default, or (B) no
Default shall exist or occur as a result of, and after
giving effect to, Borrower's Acquisition of IMS; (iii) after
Borrower's Acquisition of IMS, IMS shall be a Wholly-Owned
Subsidiary of Borrower; (iv) the representations and
warranties set forth in the Loan Documents are (or will be)
true and correct in all material respects, immediately prior
to, and after giving effect to, the Acquisition of IMS, and
the transactions contemplated thereby; and (v) after giving
effect to Borrower's Acquisition of IMS, the Companies, on a
consolidated basis, are Solvent.
8. MISCELLANEOUS. This amendment is one of the "LOAN DOCUMENTS" referred to in
the Credit Agreement, and the provisions relating to Loan Documents in SECTIONS
1 and 14 are incorporated in this amendment by reference. The Credit Agreement
is unchanged and continues in full force and effect. This amendment may be
executed in any number of counterparts with the same effect as if all
signatories had signed the same document. All counterparts must be construed
together to constitute one and the same instrument. This amendment binds and
inures to each of the undersigned and their respective successors and permitted
assigns. THIS AMENDMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
CONCERNING THE MATTERS CONTAINED HEREIN AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[REMAINDER OF PAGE INTENTIONALLY BLANK;
SIGNATURE PAGES FOLLOW]
SECOND AMENDMENT TO
CREDIT AGREEMENT AND CONSENT
19
20
ANNEX A
CLOSING CONDITIONS
(ALL DOCUMENTS DATED AS OF AUGUST 10, 2001 (THE "EXECUTION DATE"), UNLESS
OTHERWISE SPECIFIED)
1. AFTER-ACQUIRED SUBSIDIARY GUARANTY dated as of August 24, 2001,
executed by IMS in favor of Administrative Agent, together with:
(a) A formation, existence and good standing
certificate from the applicable Tribunal
(customarily issuing such certificates) of the
jurisdiction of organization of IMS; and
(b) An Officers' Certificate executed by the Treasurer
and Secretary of IMS certifying (i) its
Constituent Documents, (ii) resolutions of its
board of directors approving and authorizing the
execution, delivery, and performance of the
After-Acquired Subsidiary Guaranty, and (iii)
signatures and incumbency of its officers.
2. OFFICERS' CERTIFICATE executed by the Treasurer and Secretary of
Borrower, certifying resolutions adopted by Borrower's directors
covering this amendment and the Acquisition of IMS, incumbency of
certain officers of Borrower, and Borrower's Constituent Documents,
attached to which are:
Annex A - Resolutions
Annex B - Articles of Incorporation
Annex C - Bylaws
3. OFFICERS' CERTIFICATES executed by the Treasurer and Secretary of each
Subsidiary Guarantor certifying resolutions adopted by each such
Subsidiary Guarantor covering this amendment, incumbency of certain of
their respective officers, their Constituent Documents, attached to
which are:
Annex A - Resolutions
Annex B - Articles or Certificate of Incorporation
Annex C - Bylaws
4. CERTIFICATES OF EXISTENCE, AND GOOD STANDING for Borrower and each
Subsidiary Guarantor as of a date within 30 days of the Execution
Date, issued by the appropriate offices in the jurisdiction of each of
those Companies' incorporation.
5. Legal Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇., General Counsel to the
Companies, dated August 24, 2001, addressed to Administrative Agent
and Lenders, and in form and substance acceptable to Administrative
Agent.
6. Legal Opinion of ▇▇▇▇▇ & ▇▇▇▇▇, ▇.▇., counsel to the Companies, dated
August 24, 2001, addressed to Administrative Agent and Lender, and in
form and substance acceptable to Administrative Agent.
7. Such other agreements, documents, instruments, and items as
Administrative Agent may request.
ANNEX A
21
Signature Page to that certain Second Amendment to Credit Agreement and
Consent dated as of the date first set forth above, between AFFILIATED COMPUTER
SERVICES, INC., a Delaware corporation ("BORROWER"), certain Lenders, ▇▇▇▇▇
FARGO BANK TEXAS, NATIONAL ASSOCIATION, as Administrative Agent and Co-Lead
Arranging Agent for Lenders, BANK ONE, N.A., as Syndication Agent and Co-Lead
Arranging Agent for Lenders, SUNTRUST BANK, as Documentation Agent for Lenders,
THE BANK OF TOKYO-MITSUBISHI, LTD., as Co_Agent for Lenders, and Subsidiary
Guarantors.
2828 North ▇▇▇▇▇▇▇ AFFILIATED COMPUTER SERVICES, INC.,
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ as Borrower
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Senior Vice President Treasurer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President
and Treasurer
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ FARGO BANK TEXAS, NATIONAL
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ASSOCIATION, as Administrative Agent, Co-Lead
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Arranging Agent and a Lender
Vice President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇.▇., as Syndication Agent, Co-Lead
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Arranging Agent, and a Lender
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇,
Managing Director
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director
303 Peachtree Street, 3rd Floor SUNTRUST BANK,
Mail Code 1929 as Documentation Agent and a Lender
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇,
Vice President By /s/ ▇▇▇▇▇ ▇. ▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ --------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇, Vice President
▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇ THE BANK OF TOKYO-MITSUBISHI, LTD,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ as Co-Agent and a Lender
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice Presidents
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President and Manager
Signature Page 1 of 7
22
Signature Page to that certain Second Amendment to Credit Agreement and
Consent dated as of the date first set forth above, between AFFILIATED COMPUTER
SERVICES, INC., a Delaware corporation ("BORROWER"), certain Lenders, ▇▇▇▇▇
FARGO BANK TEXAS, NATIONAL ASSOCIATION, as Administrative Agent and Co-Lead
Arranging Agent for Lenders, BANK ONE, N.A., as Syndication Agent and Co-Lead
Arranging Agent for Lenders, SUNTRUST BANK, as Documentation Agent for Lenders,
THE BANK OF TOKYO-MITSUBISHI, LTD., as Co_Agent for Lenders, and Subsidiary
Guarantors.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ CHASE BANK OF TEXAS, NATIONAL
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ASSOCIATION, as a Lender
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President Group Manager
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ By /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
▇▇▇ ▇▇▇▇▇▇, Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ DEUTSCHE GENOSSENSCHAFTSBANK
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ AG, as a Lender
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Vice President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ By /s/ ▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ NATIONAL ASSOCIATION, as a Lender
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Senior Vice President By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ --------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ BANK, as a Lender
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President, --------------------------------------------
US Banking Department ▇▇▇▇ ▇. ▇▇▇▇▇▇, First Vice President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
One World Trade Center, 49th Floor THE DAI-ICHI KANGYO BANK, LTD., as a Lender
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President --------------------------------------------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
Signature Page 2 of 7
23
Signature Page to that certain Second Amendment to Credit Agreement and
Consent dated as of the date first set forth above, between AFFILIATED COMPUTER
SERVICES, INC., a Delaware corporation ("BORROWER"), certain Lenders, ▇▇▇▇▇
FARGO BANK TEXAS, NATIONAL ASSOCIATION, as Administrative Agent and Co-Lead
Arranging Agent for Lenders, BANK ONE, N.A., as Syndication Agent and Co-Lead
Arranging Agent for Lenders, SUNTRUST BANK, as Documentation Agent for Lenders,
THE BANK OF TOKYO-MITSUBISHI, LTD., as Co_Agent for Lenders, and Subsidiary
Guarantors.
Two World Trade Center, 79th Floor THE FUJI BANK, LIMITED, as a Lender
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By /s/ ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ --------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, Vice President and Manager
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. MICHIGAN NATIONAL BANK, as a Lender
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
First Vice President --------------------------------------------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, First Vice President
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, as a Lender
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Vice President
Three ▇▇▇▇▇ Center THE INDUSTRIAL BANK OF JAPAN,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ BRANCH, as a Lender
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President --------------------------------------------
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President,
Houston Office
Signature Page 3 of 7
24
SUBSIDIARY GUARANTOR CONFIRMATION
To induce Lenders to enter into this amendment, the undersigned jointly and
severally (a) consent and agree to this amendment's execution and delivery, (b)
ratify and confirm that all guaranties and assurances granted to the Lenders
under the Loan Documents are not released, diminished, impaired, reduced, or
otherwise adversely affected by this amendment and continue to guarantee,
assure, and secure the full payment and performance of all present and future
Obligations, (c) agree to perform such acts and duly authorize, execute,
acknowledge and deliver such additional guaranties, and other agreements or
documents, instruments, and certificates as Lenders may reasonably deem
necessary or appropriate in order to create, perfect, preserve, protect and
comply with, or effect the transactions and guaranties contemplated by SECTION
15, (d) represent and warrant to Lenders that (i) the value of the consideration
received and to be received by the undersigned in respect of those guaranties
and assurances are reasonably worth at least as much as the liability and
obligation the undersigned thereunder, (ii) that liability and obligation may
reasonably be expected to directly or indirectly benefit the undersigned, and
(iii) each undersigned is - and after giving effect to those guaranties,
assurances, and the Loan Documents, in light of all existing facts and
circumstances (including, without limitation, collateral for and other obligors
in respect of the Obligation and various components of it and various rights of
subrogation and contribution), each of the undersigned will be - Solvent, and
(e) waive notice of acceptance of this amendment, which amendment binds the
undersigned and their successors and assigns and inures to Lenders and their
respective successors and permitted assigns.
ACS BRC HOLDINGS, INC. CDSI MORTGAGE SERVICES, INC. (NOW KNOWN AS
ACS BUSINESS PROCESS SOLUTIONS, INC. ACS LENDER SERVICES, INC.)
ACS BUSINESS RESOURCES CORPORATION CLINTON COMPUTER, INC.
ACS CLAIMS SERVICES, INC. CODESMITHS, INC.
ACS COMMUNICATIONS INDUSTRY SERVICES, INC. CODING SYSTEMS, INC. (NOW KNOWN AS CODERITE, INC.)
ACS DATA ENTRY, INC. COMPUTER DATA SYSTEMS SALES, INC.
ACS DEFENSE, INC. COMPUTER SYSTEMS DEVELOPMENT, INC.
ACS DESKTOP SOLUTIONS, INC. DIGITAL INFORMATION SYSTEMS COMPANY, LLC
ACS/ECG HOLDINGS, LLC GENIX CSI, INC.
ACS ENTERPRISE SOLUTIONS, INC. GOVERNMENT RECORDS SERVICES, INC.
ACS GOVERNMENT SERVICES, INC., A TEXAS CORPORATION LATRON COMPUTER SYSTEMS, INC.
ACS GOVERNMENT SOLUTIONS GROUP, INC. (NOW LATRON HOLDINGS, INC.
KNOWN AS ACS GOVERNMENT SERVICES, INC., A MARYLAND ▇▇▇▇▇ SERVICES, INC.
CORPORATION) MEDIANET, INC.
ACS GOVERNMENT SYSTEMS, INC. MICAH TECHNOLOGY SERVICES, INC.
ACS HEALTH CARE, INC. MIDS, INC. (NOW KNOWN AS MIDASPLUS, INC.)
ACS HEALTHCARE SERVICES, INC. (NOW KNOWN AS PENNSYLVANIA ACCOUNTABLE HEALTH PLANS, INC.
ACS HEALTHCARE SOLUTIONS, INC.) PRETS HOLDINGS, INC.
ACS IMAGE SOLUTIONS, INC. TENACITY ACQUISITION COMPANY (NOW KNOWN AS
ACS LEGAL SOLUTIONS, INC. TENACITY MANUFACTURING COMPANY, INC.)
ACS LENDING, INC. THE PACE GROUP, INC. (NOW KNOWN AS ACS PACE
ACS OUTSOURCING SOLUTIONS, INC. GROUP, INC.)
ACS RETAIL SOLUTIONS, INC. TITLE RECORDS CORPORATION
ACS RTS HOLDINGS, INC. TRANSFIRST, INC. (NOW KNOWN AS ACS TRANSFIRST, INC.),
ACS SECURITIES SERVICES, INC. as Subsidiary Guarantors
ACS SHARED SERVICES, INC.
ACS TRADEONE MARKETING, INC.
ASEC INTERNATIONAL, INCORPORATED
BETAC CORPORATION
BETAC INTERNATIONAL CORPORATION By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇ ASSOCIATES, INC. (NOW KNOWN AS ---------------------------------------
ACS FEDERAL HEALTHCARE, INC.) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Treasurer of each
BIRCH & ▇▇▇▇▇ HEALTH MANAGEMENT of the foregoing Subsidiary Guarantors
CORPORATION (NOW KNOWN AS ACS STATE
HEALTH SERVICES, INC.)
BIRCH & ▇▇▇▇▇ HEALTH MANAGEMENT OF
HAWAII, INC.
BIRCH & ▇▇▇▇▇ HOLDINGS, INC.
BRC TECHNOLOGY SERVICES, INC.
CDSI EDUCATION SERVICES, INC.
CDSI INTERNATIONAL, INC.
Signature Page 4 of 7
25
Signature Page to that certain Second Amendment to Credit Agreement and
Consent dated as of the date first set forth above, between AFFILIATED COMPUTER
SERVICES, INC., a Delaware corporation ("BORROWER"), certain Lenders, ▇▇▇▇▇
FARGO BANK TEXAS, NATIONAL ASSOCIATION, as Administrative Agent and Co-Lead
Arranging Agent for Lenders, BANK ONE, N.A., as Syndication Agent and Co-Lead
Arranging Agent for Lenders, SUNTRUST BANK, as Documentation Agent for Lenders,
THE BANK OF TOKYO-MITSUBISHI, LTD., as Co_Agent for Lenders, and Subsidiary
Guarantors.
MG/A FIELDS ROAD LTD. PARTNERSHIP,
as Subsidiary Guarantor
By: ACS GOVERNMENT SERVICES, INC., its
General Partner, formerly known as ACS
Government Solutions Group, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Treasurer
ACS MARKETING, LP,
as a Subsidiary Guarantor
By: AFFILIATED COMPUTER SERVICES, INC.,
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Treasurer
CONSULTEC, LLC (now known as ACS STATE
HEALTHCARE, LLC),
as a Subsidiary Guarantor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, Treasurer
Signature Page 5 of 7
26
Signature Page to that certain Second Amendment to Credit Agreement and
Consent dated as of the date first set forth above, between AFFILIATED COMPUTER
SERVICES, INC., a Delaware corporation ("BORROWER"), certain Lenders, ▇▇▇▇▇
FARGO BANK TEXAS, NATIONAL ASSOCIATION, as Administrative Agent and Co-Lead
Arranging Agent for Lenders, BANK ONE, N.A., as Syndication Agent and Co-Lead
Arranging Agent for Lenders, SUNTRUST BANK, as Documentation Agent for Lenders,
THE BANK OF TOKYO-MITSUBISHI, LTD., as Co_Agent for Lenders, and Subsidiary
Guarantors.
FCTC TRANSFER SERVICES, L.P.,
as a Subsidiary Guarantor
By: /s/ Stuart Chagrin
--------------------------------------
Stuart Chagrin, General Partner
Signature Page 6 of 7
27
Signature Page to that certain Second Amendment to Credit Agreement and
Consent dated as of the date first set forth above, between AFFILIATED COMPUTER
SERVICES, INC., a Delaware corporation ("BORROWER"), certain Lenders, ▇▇▇▇▇
FARGO BANK TEXAS, NATIONAL ASSOCIATION, as Administrative Agent and Co-Lead
Arranging Agent for Lenders, BANK ONE, N.A., as Syndication Agent and Co-Lead
Arranging Agent for Lenders, SUNTRUST BANK, as Documentation Agent for Lenders,
THE BANK OF TOKYO-MITSUBISHI, LTD., as Co_Agent for Lenders, and Subsidiary
Guarantors.
ACS PROPERTIES, INC.,
as a Subsidiary Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Treasurer
Signature Page 7 of 7