EXHIBIT 10.25
REVOLVING CREDIT AGREEMENT
among
AFFILIATED COMPUTER SERVICES, INC. AND OTHER BORROWERS FROM TIME TO
TIME PARTY HERETO,
Borrowers
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
Co-Lead Arranger and Sole Book Runner
JPMORGAN CHASE BANK,
Co-Lead Arranger
XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION
Administrative Agent
JPMORGAN CHASE BANK AND BANK ONE, N.A.,
Co-Syndication Agents
and
KEY CORPORATE CAPITAL, INC. AND THE BANK OF TOKYO-MITSUBISHI, LTD.
Co-Documentation Agents,
The Senior Managing Agent and Managing Agents defined herein
and
THE LENDERS NAMED HEREIN,
Lenders
$875,000,000
DATED AS OF SEPTEMBER 12, 2002
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS AND TERMS................................................................................1
1.1 DEFINITIONS............................................................................................1
1.2 NUMBER AND GENDER OF WORDS; OTHER REFERENCES..........................................................16
1.3 ACCOUNTING PRINCIPLES.................................................................................16
1.4 CURRENCY REFERENCES...................................................................................16
SECTION 2 BORROWING PROVISIONS................................................................................16
2.1 REVOLVER FACILITY.....................................................................................16
2.2 LC SUBFACILITY........................................................................................17
2.3 SWING LINE SUBFACILITY................................................................................20
2.4 INCREASE IN REVOLVER COMMITMENT.......................................................................21
2.5 TERMINATIONS OR REDUCTIONS OF COMMITMENTS.............................................................22
2.6 BORROWING PROCEDURE...................................................................................23
SECTION 3 TERMS OF PAYMENT....................................................................................24
3.1 LOAN ACCOUNTS, NOTES, AND PAYMENTS....................................................................24
3.2 INTEREST AND PRINCIPAL PAYMENTS.......................................................................24
3.3 PREPAYMENTS...........................................................................................25
3.4 INTEREST OPTIONS......................................................................................25
3.5 QUOTATION OF RATES....................................................................................26
3.6 DEFAULT RATE..........................................................................................26
3.7 INTEREST RECAPTURE....................................................................................26
3.8 INTEREST CALCULATIONS.................................................................................26
3.9 MAXIMUM RATE..........................................................................................26
3.10 INTEREST PERIODS......................................................................................27
3.11 CONVERSIONS...........................................................................................27
3.12 ORDER OF APPLICATION..................................................................................27
3.13 SHARING OF PAYMENTS, ETC..............................................................................28
3.14 OFFSET................................................................................................29
3.15 BOOKING BORROWINGS....................................................................................29
SECTION 4 CHANGE IN CIRCUMSTANCES.............................................................................29
4.1 INCREASED COST AND REDUCED RETURN.....................................................................29
4.2 LIMITATION ON TYPES OF LOANS..........................................................................30
4.3 ILLEGALITY............................................................................................30
4.4 TREATMENT OF AFFECTED LOANS...........................................................................31
4.5 COMPENSATION..........................................................................................31
4.6 TAXES.................................................................................................31
4.7 REMOVAL OF LENDERS....................................................................................33
SECTION 5 FEES................................................................................................34
5.1 TREATMENT OF FEES.....................................................................................34
5.2 FEES OF ADMINISTRATIVE AGENT AND ARRANGER.............................................................34
5.3 FACILITY FEE..........................................................................................34
5.4 UTILIZATION FEE.......................................................................................34
5.5 LC FEES...............................................................................................35
SECTION 6. SECURITY; GUARANTIES................................................................................35
6.1 BORROWERS, GUARANTIES, AND FOREIGN STOCK PLEDGES......................................................35
6.2 RELEASE OF BORROWERS, GUARANTIES, AND COLLATERAL......................................................35
6.3 CONTROL; LIMITATION OF RIGHTS.........................................................................36
SECTION 7 CONDITIONS PRECEDENT................................................................................36
7.1 CONDITIONS PRECEDENT TO CLOSING.......................................................................36
7.2 CONDITIONS PRECEDENT TO EACH BORROWING................................................................36
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7.3 CONDITIONS PRECEDENT TO ADDITIONAL BORROWERS, GUARANTORS, OR FOREIGN STOCK PLEDGES....................36
SECTION 8 REPRESENTATIONS AND WARRANTIES......................................................................37
8.1 PURPOSE OF CREDIT FACILITY............................................................................37
8.2 EXISTENCE, GOOD STANDING, AUTHORITY, AND AUTHORIZATIONS...............................................37
8.3 SUBSIDIARIES; CAPITAL STOCK...........................................................................37
8.4 AUTHORIZATION AND CONTRAVENTION.......................................................................37
8.5 BINDING EFFECT........................................................................................37
8.6 FINANCIAL STATEMENTS..................................................................................38
8.7 LITIGATION, CLAIMS, INVESTIGATIONS....................................................................38
8.8 TAXES.................................................................................................38
8.9 ENVIRONMENTAL MATTERS.................................................................................38
8.10 EMPLOYEE BENEFIT PLANS................................................................................38
8.11 PROPERTIES; LIENS.....................................................................................39
8.12 GOVERNMENT REGULATIONS................................................................................39
8.13 INTELLECTUAL PROPERTY.................................................................................39
8.14 COMPLIANCE WITH LAWS..................................................................................39
8.15 REGULATION U..........................................................................................39
8.16 FULL DISCLOSURE.......................................................................................39
8.17 NO DEFAULT............................................................................................39
8.18 CONTINGENT EARN-OUT PAYMENTS..........................................................................39
SECTION 9 COVENANTS...........................................................................................40
9.1 USE OF PROCEEDS.......................................................................................40
9.2 BOOKS AND RECORDS.....................................................................................40
9.3 ITEMS TO BE FURNISHED.................................................................................40
9.4 INSPECTIONS...........................................................................................41
9.5 TAXES.................................................................................................41
9.6 PAYMENT OF OBLIGATIONS................................................................................41
9.7 MAINTENANCE OF EXISTENCE, ASSETS, AND BUSINESS........................................................41
9.8 INSURANCE.............................................................................................42
9.9 PRESERVATION AND PROTECTION OF RIGHTS.................................................................42
9.10 EMPLOYEE BENEFIT PLANS................................................................................42
9.11 ENVIRONMENTAL LAWS....................................................................................42
9.12 DEBT AND GUARANTIES...................................................................................42
9.13 LIENS.................................................................................................42
9.14 TRANSACTIONS WITH AFFILIATES..........................................................................44
9.15 COMPLIANCE WITH LAWS AND DOCUMENTS....................................................................44
9.16 ACCOUNTING METHODS....................................................................................44
9.17 GOVERNMENT REGULATIONS................................................................................44
9.18 RESTRICTIONS ON SUBSIDIARIES..........................................................................44
9.19 SALE OF ASSETS........................................................................................44
9.20 ACCOUNTS RECEIVABLE FINANCING.........................................................................45
9.21 MERGERS AND DISSOLUTIONS..............................................................................45
9.22 FINANCIAL COVENANTS...................................................................................45
9.23 ACQUISITIONS..........................................................................................45
SECTION 10 DEFAULT.............................................................................................45
10.1 PAYMENT OF OBLIGATION.................................................................................45
10.2 COVENANTS.............................................................................................45
10.3 DEBTOR RELIEF.........................................................................................46
10.4 JUDGMENTS AND ATTACHMENTS.............................................................................46
10.5 GOVERNMENT ACTION.....................................................................................46
10.6 MISREPRESENTATION.....................................................................................46
ii
10.7 CHANGE OF CONTROL.....................................................................................46
10.8 DEFAULT UNDER OTHER DEBT AND AGREEMENTS...............................................................46
10.9 EMPLOYEE BENEFIT PLANS................................................................................47
10.11 VALIDITY AND ENFORCEABILITY OF LOAN DOCUMENTS.........................................................47
SECTION 11 RIGHTS AND REMEDIES.................................................................................47
11.1 REMEDIES UPON DEFAULT.................................................................................47
11.2 COMPANY WAIVERS; NO RELEASE...........................................................................48
11.3 PERFORMANCE BY ADMINISTRATIVE AGENT...................................................................48
11.4 DELEGATION OF DUTIES AND RIGHTS.......................................................................48
11.5 NOT IN CONTROL........................................................................................48
11.6 COURSE OF DEALING.....................................................................................48
11.7 CUMULATIVE RIGHTS.....................................................................................49
11.8 APPLICATION OF PROCEEDS...............................................................................49
11.9 CERTAIN PROCEEDINGS...................................................................................49
11.10 EXPENDITURES BY LENDERS...............................................................................49
11.11 INDEMNIFICATION.......................................................................................49
SECTION 12 AGREEMENT AMONG LENDERS.............................................................................50
12.1 ADMINISTRATIVE AGENT; LC ISSUERS......................................................................50
12.2 EXPENSES..............................................................................................52
12.3 PROPORTIONATE ABSORPTION OF LOSSES....................................................................52
12.4 DELEGATION OF DUTIES; RELIANCE........................................................................52
12.5 LIMITATION OF LIABILITY...............................................................................52
12.6 DEFAULT; COLLATERAL...................................................................................53
12.7 LIMITATION OF LIABILITY...............................................................................55
12.8 RELATIONSHIP OF LENDERS...............................................................................56
12.9 BENEFITS OF AGREEMENT.................................................................................56
12.10 AGENTS................................................................................................56
12.11 OBLIGATIONS SEVERAL...................................................................................56
SECTION 13 MISCELLANEOUS.......................................................................................56
13.1 HEADINGS..............................................................................................56
13.2 NONBUSINESS DAYS......................................................................................56
13.3 COMMUNICATIONS; FACSIMILE COPIES......................................................................56
13.4 FORM AND NUMBER OF DOCUMENTS..........................................................................57
13.5 SURVIVAL..............................................................................................57
13.6 GOVERNING LAW.........................................................................................57
13.7 INVALID PROVISIONS....................................................................................58
13.8 ENTIRETY..............................................................................................58
13.9 JURISDICTION; VENUE; SERVICE OF PROCESS; JURY TRIAL...................................................58
13.10 AMENDMENTS, CONSENTS, CONFLICTS, AND WAIVERS..........................................................59
13.11 MULTIPLE COUNTERPARTS.................................................................................60
13.12 SUCCESSORS AND ASSIGNS; ASSIGNMENTS AND PARTICIPATIONS................................................60
13.13 DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN CIRCUMSTANCES...........................62
13.14 CONFIDENTIALITY.......................................................................................63
13.15 DESIGNATED SENIOR INDEBTEDNESS........................................................................63
iii
SCHEDULES AND EXHIBITS
Schedule 2.1 - Lenders and Commitments
Schedule 2.2 - Existing Letters of Credit
Schedule 7.1 - Conditions Precedent to Closing
Schedule 7.3 - Condition Precedent to Additional Borrowers
Schedule 8.7 - Litigation
Schedule 8.18 - Contingent "Earn-Out" Payments
Exhibit A-1 - Form of Revolver Note
Exhibit A-2 - Form of Swing Line Note
Exhibit B-1 - Form of Borrowing Notice
Exhibit B-2 - Form of Conversion Notice
Exhibit B-3 - Form of LC Request
Exhibit C - Form of Guaranty
Exhibit D - Form of Compliance Certificate
Exhibit E - Form of Assignment and Acceptance Agreement
Exhibit F - Form of Contribution Agreement
Exhibit G - Forms of Release
Exhibit H - Form of Supplemental Document
iv
REVOLVING CREDIT AGREEMENT
THIS
REVOLVING CREDIT AGREEMENT is entered into as of September __ ,
2002, among AFFILIATED COMPUTER SERVICES, INC. a Delaware corporation ("ACS"),
other Borrowers from time to time party hereto (collectively with ACS,
"BORROWERS"), Lenders (hereinafter defined), XXXXX FARGO BANK TEXAS, NATIONAL
ASSOCIATION, as Administrative Agent (hereinafter defined), for itself and the
other Lenders, Key Corporate Capital, Inc. and The Bank of Tokyo-Mitsubishi,
Ltd., as Co-Documentation Agents (hereinafter defined), JPMorgan Chase Bank and
Bank One, N.A., as Co-Syndication Agents (hereinafter defined), and Wachovia
Bank, National Association, as Senior Managing Agent.
RECITALS
ACS has requested that Lenders extend a revolving credit facility to
Borrowers not to exceed a total outstanding principal amount of $875,000,000
(subject to increase pursuant to SECTION 2.4) at any time (with certain
subfacilities for letters of credit and swing-line advances) to be used by
Borrowers as provided in SECTION 8.1. Lenders are willing to extend the
requested credit facility on the terms and conditions of this agreement.
ACCORDINGLY, for adequate and sufficient consideration, ACS, other
Borrowers, Lenders, and Agents agree as follows:
SECTION 1 DEFINITIONS AND TERMS.
1.1 DEFINITIONS. As used herein:
ACQUISITION means any transaction or series of related transactions for
the purpose of, or resulting in, directly or indirectly, (a) the acquisition by
any Company of all or substantially all of the assets of a Person or of any
business or division of a Person, (b) the acquisition by any Company of more
than 50% of any class of Voting Stock (or similar ownership interests) of any
Person, or (c) a merger, consolidation, amalgamation, or other combination by
any Company with another Person if a Company is the surviving entity; provided
that, in any merger, consolidation, amalgamation, or other combination involving
ACS, ACS must be the surviving entity.
ACS means Affiliated Computer Services, Inc., a Delaware corporation.
ADJUSTED EBITDA means EBITDA of the Companies on a consolidated basis
adjusted (a) as permitted and in accordance with, Article 11 of Regulation S-X
of the Securities Act of 1933 and (b) to give effect to any Acquisitions and
divestitures of or by the Companies during the applicable Rolling Period as if
such transactions had occurred on the first day of such Rolling Period
regardless of whether the effect is positive or negative.
ADJUSTED EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for
any Interest Period therefor, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) determined by Administrative Agent to be equal to
the quotient obtained by dividing (a) the Eurodollar Rate for such Eurodollar
Rate Borrowing for such Interest Period by (b) 1 minus the Reserve Requirement
for such Eurodollar Rate Borrowing for such Interest Period.
ADMINISTRATIVE AGENT means Xxxxx Fargo Bank Texas, National
Association, and its permitted successors or assigns as "Administrative Agent"
for Lenders under the Loan Documents.
1 ACS CREDIT AGREEMENT
ADMINISTRATIVE QUESTIONNAIRE means an Administrative Questionnaire in a
form supplied by Administrative Agent.
AFFILIATE of any Person means any other Person who directly or
indirectly Controls, or is Controlled by, or is under common Control with, such
Person.
AGENTS means, collectively, Administrative Agent, Co-Syndication
Agents, Co-Documentation Agents, and Senior Managing Agent.
ALTERNATIVE CURRENCY means Canadian Dollars, Pounds Sterling, Euros, or
any other currency that Administrative Agent has notified Borrowers, upon their
request, that Administrative Agent and Required Lenders have determined to be
freely transferable and convertible into Dollars, so long as (a) such currency
is dealt with in the London interbank deposit market, (b) such currency is
freely transferable and convertible into Dollars in the London foreign exchange
market, (c) no Governmental Authority in the country of issue of such currency
is required to permit use of such currency by any applicable LC Issuer for
issuing LCs or honoring drafts presented under LCs in such currency, and (d)
there is no restriction or prohibition under any applicable Law against the use
of such currency for such purposes. If, after the issuance of an LC in an
Alternative Currency, the Alternative Currency denominated in such LC ceases to
be lawful currency freely-convertible into Dollars and is replaced by the Euro,
then thereafter the Alternative Currency for purposes of such LC shall be the
Euro.
AGREEMENT means this
Revolving Credit Agreement (as the same may
hereafter be amended, modified, supplemented, or restated from time to time in
accordance with the terms hereof).
APPLICABLE LENDING OFFICE means, for each Lender and for each Type of
Borrowing, the "Lending Office" of such Lender (or an affiliate of such Lender)
designated on SCHEDULE 2.1 attached hereto or such other office that such Lender
(or an affiliate of such Lender) may from time to time specify to Administrative
Agent and Borrowers by written notice in accordance with the terms hereof.
APPLICABLE MARGIN means, from time to time, the following percentage
per annum, based upon the Debt Rating as set forth below:
APPLICABLE MARGIN
PRICING LEVEL FROM DEBT RATINGS EURODOLLAR RATE
HIGHEST TO LOWEST S&P/MOODY'S FACILITY FEE BORROWINGS UTILIZATION FEE
------------------ ------------------ --------------- ----------------- ---------------
1 A-/A3 or better 0.150% 0.375% 0.100%
2 BBB+/Baa1 0.175% 0.575% 0.125%
3 BBB/Baa2 0.200% 0.775% 0.150%
4 BBB-/Baa3 0.250% 0.925% 0.200%
5 Worse than 0.250% 1.250% 0.250%
BBB-/Baa3 or Not
Rated
For purposes of the foregoing: (a) if the Debt Rating issued by Moody's and the
Debt Rating issued by S&P shall fall within different Pricing Levels (but not
more than one (1) Pricing Level apart), then the Applicable Margin shall be
determined by reference to the higher Pricing Level (e.g., if the Debt Rating
issued by S&P is in Pricing Xxxxx 0 and the Debt Rating issued by Xxxxx'x is in
Pricing Xxxxx 0, then the Applicable Margin shall be determined by reference to
Pricing Level 1); (b) if the Debt Rating issued by Moody's and the Debt Rating
issued by S&P shall fall within different Pricing Levels (and by more than
2 ACS CREDIT AGREEMENT
one (1) Pricing Level), then the Applicable Margin shall be determined by
reference to the Pricing Level that is one (1) Pricing Level higher than the
lower Pricing Level (e.g., if the Debt Rating issued by S&P is in Pricing Xxxxx
0 and the Debt Rating issued by Xxxxx'x is in Pricing Xxxxx 0, then the
Applicable Margin shall be determined by reference to Pricing Level 3); and (c)
if either Moody's or S&P no longer publishes ratings and ACS and Administrative
Agent cannot agree on another ratings agency to replace Moody's or S&P, as the
case may be, then the Debt Rating issued by Moody's or the Debt Rating issued by
S&P which is still being published, as the case may be, shall be deemed to be
the Debt Rating.
Initially, the Applicable Margin shall be determined based upon the Debt Rating
specified in the certificate delivered pursuant to SCHEDULE 7.1, ITEM 19.
Thereafter, each change in the Applicable Margin resulting from a publicly
announced change in the Debt Rating shall be effective, in the case of an
upgrade, commencing on the date of the public announcement thereof so long as
Borrowers have delivered to Administrative Agent notice thereof pursuant to
SECTION 9.3(c)(vi) and ending on the date immediately preceding the effective
date of the next such change and, in the case of a downgrade, commencing on the
date of the public announcement thereof and ending on the date immediately
preceding the effective date of the next such change.
ARRANGER means Xxxxx Fargo Bank, National Association and its
successors and assigns, in its capacity as co-lead arranger and sole book
manager under the Loan Documents.
ASSIGNMENT AND ACCEPTANCE is defined in SECTION 13.12(b)(iv).
ATTRIBUTABLE DEBT means, with respect to any Synthetic Lease, as of any
date of determination, the total obligation (discounted to present value at the
rate of interest implicit in the lease included in such transaction) of the
lessee for rental payments (other than amounts required to be paid on account of
property taxes, maintenance, repairs, insurance, assessments, utilities,
operating and labor costs and other items which do not constitute payments for
property rights) during the remaining portion of the term (including extensions
which are at the sole option of the lessor) of the lease included in such
transaction (and in the case of any lease which is terminable by the lessee upon
the payment of a penalty, such rental obligation shall also include the amount
of such penalty, but no rent shall be considered as required to be paid under
such lease subsequent to the first date upon which it may be so terminated).
AUTHORIZATIONS means all filings, recordings, and registrations with,
and all validations or exemptions, approvals, orders, authorizations, consents,
franchises, licenses, certificates, and permits from, any Governmental
Authority.
BASE RATE means, for any day, the rate per annum equal to the higher of
(a) the Federal Funds Rate for such day plus one-half of one percent (.5%) and
(b) the Prime Rate for such day. Any change in the Base Rate due to a change in
the Prime Rate or the Federal Funds Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Rate.
BASE RATE BORROWING means a Borrowing bearing interest at the Base
Rate.
BORROWERS is defined in the preamble to this Agreement; provided,
however, that notwithstanding anything to the contrary in this Agreement or any
Loan Document, ACS shall at all times be a Borrower.
BORROWING means any amount disbursed (a) by one or more Lenders under
the Loan Documents (under the Revolver Facility or the Swing Line Subfacility),
whether such amount constitutes an original disbursement of funds, the
continuation of an amount outstanding, or a funding under SECTION 2.2(c), or (b)
by any Lender in accordance with, and to satisfy the obligations of any Loan
Party under, any Loan Document.
3 ACS CREDIT AGREEMENT
BORROWING DATE is defined in SECTION 2.6(a).
BORROWING NOTICE means a request for Borrowing made pursuant to SECTION
2.6(a), substantially in the form of EXHIBIT B-1.
BUSINESS DAY means (a) for all purposes, any day other than Saturday,
Sunday, and any other day on which commercial banking institutions are required
or authorized by Law to be closed in Dallas, Texas or
New York,
New York, and
(b) in addition to the foregoing, in respect of any Eurodollar Rate Borrowing, a
day on which dealings in United States dollars are conducted in the London
interbank market and commercial banks are open for international business in
London.
CANADIAN DOLLARS and the symbol "CDN$" means the lawful currency of
Canada.
CAPITAL EXPENDITURES means an expenditure for any fixed asset, or any
improvements or additions thereto, which should be capitalized on a balance
sheet in accordance with GAAP.
CAPITAL LEASE means any capital lease or sublease which should be
capitalized on a balance sheet in accordance with GAAP.
CLOSING DATE means the date upon which this Agreement has been executed
by Borrowers, Lenders, and Administrative Agent and all conditions precedent
specified in SECTION 7.1 have been satisfied or waived, which waiver shall be
evidenced by the funding of the initial Borrowing.
CO-DOCUMENTATION AGENT means Key Corporate Capital, Inc. and The Bank
of Tokyo-Mitsubishi, Ltd., and their respective permitted successors and assigns
as "Co-Documentation Agents" under the Loan Documents.
CO-SYNDICATION AGENTS means JPMorgan Chase Bank and Bank One, N.A., and
their respective permitted successors or assigns as "Co-Syndication Agents"
under the Loan Documents.
CODE means the Internal Revenue Code of 1986, as amended, together with
the rules and regulations promulgated thereunder.
COLLATERAL means all of the items and types of property described as
"Collateral" in now existing or hereafter created Foreign Stock Pledges and all
cash and non-cash proceeds thereof.
COMMITMENT PERCENTAGE means, at any date of determination, for any
Lender, the proportion (stated as a percentage) that its Committed Sum bears to
the aggregate Committed Sums of all Lenders.
COMMITTED SUM means for any Lender at any date of determination
occurring prior to the Termination Date, the amount stated beside such Lender's
name on SCHEDULE 2.1 to this Agreement or in the Assignment and Acceptance
pursuant to which such Lender becomes a party hereto, as applicable, as such
amount may be increased, reduced, or cancelled from time to time in accordance
with the Loan Documents.
COMPANIES means, at any date of determination thereof, ACS and each of
its Subsidiaries; and COMPANY means, on any date of determination, ACS or any of
its Subsidiaries.
COMPLIANCE CERTIFICATE means a certificate signed by a Responsible
Officer, substantially in the form of EXHIBIT D.
4 ACS CREDIT AGREEMENT
CONSEQUENTIAL LOSS means any loss or expense which any Lender may
reasonably incur in respect of a Eurodollar Rate Borrowing as a consequence of
any event described in SECTION 4.5.
CONSTITUENT DOCUMENTS means, with respect to any Person, its articles
or certificate of incorporation, bylaws, partnership agreements, organizational
documents, limited liability company agreements, trust agreement, or such other
document as may govern such Person's formation, organization, and management.
CONTRIBUTION AGREEMENT means (a) a Contribution Agreement in
substantially the form and upon the terms of EXHIBIT F, executed and delivered
by any Person pursuant to the requirements of the Loan Documents; and (b) any
amendments, modifications, supplements, restatements, ratifications, or
reaffirmations of any Contribution Agreement made in accordance with the Loan
Documents.
CONTROL means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of Stock, by contract, or otherwise, and "CONTROLLING" and
"CONTROLLED" shall have meanings correlative thereto.
CONVERSION NOTICE means a request pursuant to SECTION 3.11,
substantially in the form of EXHIBIT B-2.
COVERAGE REQUIREMENT is defined in SECTION 6.1.
CURRENT FINANCIALS means, at the time of any determination thereof, the
more recently delivered to Lenders of either (a) (i) the audited Financial
Statements for the fiscal year ended June 30, 2001, calculated on a consolidated
basis for the Companies; and (ii) the unaudited Financial Statements for the
fiscal quarter ended March 31, 2002, calculated on a consolidated basis for the
Companies; or (b) the Financial Statements required to be delivered under
SECTIONS 9.3(a) or 9.3(b), as the case may be, calculated on a consolidated
basis for the Companies.
DEBT means (without duplication), for any Company, the sum of the
following: (a) all obligations for borrowed money; (b) all obligations evidenced
by bonds, debentures, notes, or similar instruments; (c) all obligations to pay
the deferred purchase price of property or services except trade accounts
payable arising in the ordinary course of business; (d) all direct or contingent
obligations in respect of letters of credit; (e) indebtedness that is secured
(or for which the holder of the Debt has an existing right, contingent or
otherwise to be so secured) by any Lien existing on property owned or acquired
by any Company; (f) obligations of such Person under Capital Leases; (g)
Attributable Debt associated with Synthetic Leases; (h) any Receivables
Financing Amount; and (i) all guaranties, endorsements, and other contingent
obligations for Debt of Persons other than another Company; provided, however
that Debt shall expressly exclude surety, payment, or performance bonds issued
in the ordinary course of such Company's business.
DEBT RATING means, as of any date of determination, the most
recently-announced rating as determined by either S&P or Xxxxx'x (collectively,
the "DEBT RATINGS") assigned to any class of long-term senior, unsecured Debt
securities issued by ACS as to which no letters of credit, guaranties (excluding
guaranties of Subsidiaries of ACS), or third-party credit support is in place,
regardless of whether all or any part of such Debt has been issued at the time
such rating was issued.
DEBTOR RELIEF LAWS means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments, or similar Laws from time to
time in effect affecting the Rights of creditors generally.
5 ACS CREDIT AGREEMENT
DEFAULT is defined in SECTION 10.
DEFAULT RATE means a per annum rate of interest equal from day to day
to the lesser of (a) the sum of the Base Rate plus 2% and (b) the Maximum Rate.
DISTRIBUTION for any Person means, with respect to any shares of any
Stock issued by such Person, (a) the retirement, redemption, purchase, or other
acquisition for value of any such Stock, (b) the declaration or payment of any
dividend on or with respect to any such Stock, and (c) any other payment by such
Person with respect to such Stock.
DOLLAR EQUIVALENT means on any day (a) with respect to any amount
denominated in Dollars, such amount and (b) with respect to any amount
denominated in an Alternative Currency, the amount of Dollars into which such
amount may be converted at the spot rate at which Dollars are offered to
Administrative Agent in London for the Alternative Currency in which such amount
is denominated at approximately 11:00 a.m. (London time) on such day or if such
day is not a Business Day, on the immediately preceding Business Day.
DOLLARS and the symbol $ means lawful money of the United States of
America.
DOMESTIC SUBSIDIARY of any Person means a direct or indirect Subsidiary
of such Person that is organized or incorporated under the Laws of a
jurisdiction of the United States.
DOMESTIC SUBSIDIARY OBLIGOR means any Domestic Subsidiary of ACS that
is either a Borrower or a Guarantor.
EBITDA means, for any Person, as calculated at any date of
determination with respect to the most recently ended Rolling Period (unless
otherwise indicated), the sum (without duplication and without giving effect to
any extraordinary losses or gains during such period) of (a) net income or
deficit during such period, plus (b) to the extent already deducted in computing
such net income, (i) income Tax expense; (ii) Interest Expense during such
period, and (iii) depreciation, amortization, and other non-cash expense items
during such period (excluding any such non-cash item to the extent that it
represents an accrual or reserve for potential cash items in any future period
or amortization of a prepaid cash item that was paid in a prior period), minus
(c) other non-cash items increasing net income for such period (excluding any
such non-cash item to the extent that it represents the reversal of an accrual
for a potential cash item in any prior period); in each case calculated on a
consolidated basis for such Person in accordance with GAAP.
EC TREATY means the Treaty establishing the European Community (signed
in Rome on March 25, 1957), as amended by the Treaty on European Union (signed
in Maastricht on February 7, 1992), as further amended or supplemented from time
to time.
ELIGIBLE ASSIGNEE means (a) a Lender; (b) an Affiliate of a Lender (so
long as such assignment is not made in conjunction with the sale of such
Affiliate); and (c) any other Person approved by (i) Administrative Agent (which
approval will not be unreasonably withheld or delayed by Administrative Agent)
and (ii) unless a Default or Potential Default has occurred and is continuing at
the time any assignment is effected in accordance with SECTION 13.12, ACS, such
approval not to be unreasonably withheld or delayed by ACS and such approval to
be deemed given by ACS if no objection is received by the assigning Lender and
Administrative Agent from ACS within five Business Days after notice of such
proposed assignment has been provided by the assigning Lender to ACS; provided,
however, that neither ACS nor any Affiliate of any Borrower shall qualify as an
Eligible Assignee.
6 ACS CREDIT AGREEMENT
EMPLOYEE PLAN means an employee pension benefit plan covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code and established or maintained by any Loan Party, Restricted Subsidiary
thereof, or ERISA Affiliate, but not including any Multiemployer Plan.
EMU the European economic and monetary union.
ENVIRONMENTAL LAW means any applicable Law that relates to (a) the
condition or protection of air, groundwater, surface water, soil, or other
environmental media, (b) the environment, including natural resources or any
activity which affects the environment, (c) the regulation of any pollutants,
contaminants, wastes, substances, and Hazardous Substances, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9601 et seq.) ("CERCLA"), the Clean Air Act (42
U.S.C. Section 7401 et seq.), the Federal Water Pollution Control Act, as
amended by the Clean Water Act (33 U.S.C. Section 1251 et seq.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136 et seq.), the
Emergency Planning and Community Right to Know Act of 1986 (42 U.S.C. Section
11001 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. Section
1801 et seq.), the National Environmental Policy Act of 1969 (42 U.S.C. Section
4321 et seq.), the Oil Pollution Act (33 U.S.C. Section 2701 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the
Rivers and Harbors Act (33 U.S.C. Section 401 et seq.), the Safe Drinking Water
Act (42 U.S.C. Section 201 and Section 300f et seq.), the Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act of 1976 and the
Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. Section 6901 et seq.),
the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), and analogous
state and local Laws, as any of the foregoing may have been and may be amended
or supplemented from time to time, and any analogous future enacted or adopted
Law, or (d) the Release or threatened Release of Hazardous Substances.
ENVIRONMENTAL LIABILITY means any obligation, liability (including,
without limitation, any strict liability), loss, fine, penalty, charge, Lien,
damage, cost, or expense of any kind to the extent that it results (a) from any
violation of or any obligation or liability under any Environmental Law, or (b)
from the presence, Release, or threatened Release of any Hazardous Substance.
ENVIRONMENTAL PERMIT means any permit, license, or other Authorization
from any Governmental Authority that is required under any Environmental Law for
the lawful conduct of any business, process, or other activity.
EQUITY ISSUANCE means any issuance on and after the Closing Date by any
consolidating Company of any shares of Stock that has the result of increasing
the Net Worth (as determined in accordance with GAAP).
ERISA means the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and rulings thereunder.
ERISA AFFILIATE means any company or trade or business (whether or not
incorporated) which, for purposes of Title IV of ERISA, is, or has been within
the past six years, a member of any Company's controlled group or which is, or
has been within the past six years, under common control with any Company within
the meaning of Section 414(b), (c), (m), or (o) of the Code.
ERISA EVENT means any of the following: (a) the occurrence of a
Reportable Event; (b) the application for a minimum funding waiver with respect
to an Employee Plan, or becoming obligated to file with the PBGC a notice of
failure to make a required payment with respect to any Employee Plan; (c) the
provision by the administrator of any Employee Plan of a notice of intent to
terminate such Employee Plan; (d) the withdrawal by any Company or ERISA
Affiliate, in whole or in part, from a Multiemployer Plan; (e) the occurrence of
any condition (under ERISA, the Code, or otherwise) for the imposition of a Lien
in favor of the PBGC on the assets of any Company or ERISA Affiliate; (f) the
7 ACS CREDIT AGREEMENT
adoption of an amendment to an Employee Plan requiring the provision of security
to such Employee Plan; (g) institution by the PBGC of proceedings to terminate
or impose liability in respect of (other than premiums under Section 4007 of
ERISA), any Employee Plan, or the occurrence of any event or condition that
constitutes grounds for termination of, or the appointment of a trustee to
administer, any Employee Plan; (h) institution by the sponsor of a Multiemployer
Plan of proceedings to terminate or reorganize such Multiemployer Plan, or to
impose withdrawal liability on any Company or ERISA Affiliate with respect to
such Multiemployer Plan; (i) the cessation of operations at a facility of any
Company or ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; or (j) any Company or ERISA Affiliate has engaged in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code).
EURO means the euro referred to in Council Regulation (EC) No. 1103/97
dated June 17, 1997, passed by the council of the European Union, or, if
different, the then lawful currency of the member states of the European Union
that participate in the third stage of economic and monetary union.
EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Dow Xxxxx Markets Page 3750 (or any
successor page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Eurodollar Rate" shall mean,
for any Eurodollar Rate Borrowing for any Interest Period therefor, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
EURODOLLAR RATE BORROWING means a Borrowing bearing interest at the sum
of the Adjusted Eurodollar Rate plus the Applicable Margin for Eurodollar Rate
Borrowings.
EUROPEAN UNION means the European Union established under the EC
Treaty.
EXISTING CREDIT AGREEMENTS means, collectively, (a) the Credit
Agreement dated June 10, 2002, between ACS, Xxxxxxx Xxxxx Credit Partners L.P.,
Xxxxx Fargo Bank Texas, National Association, certain lenders partly thereto,
and certain Subsidiary Guarantors party thereto and (b) the Credit Agreement
dated May 12, 2000, between ACS, Xxxxx Fargo Bank Texas, National Association,
certain lenders party thereto, and certain Subsidiary Guarantors party thereto,
in each case as amended.
EXISTING LETTERS OF CREDIT means those certain outstanding letters of
credit listed on SCHEDULE 2.2 hereto, issued by Xxxxx Fargo Bank Texas, National
Association, under and pursuant to the Credit Agreement dated May 12, 2000,
between ACS, Xxxxx Fargo Bank Texas, National Association, certain lenders party
thereto, and certain Subsidiary Guarantors party thereto.
EXHIBIT means an exhibit to this Agreement unless otherwise specified.
FEDERAL FUNDS RATE means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined (which
determination shall be conclusive and binding, absent manifest error) by
Administrative Agent to be equal to the weighted average of the rates on
overnight Federal funds transactions with member banks 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;
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such
8 ACS CREDIT AGREEMENT
day shall be such rate on such transactions on the next preceding Business Day
as so published on the next succeeding 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 charged to Administrative Agent (in its
individual capacity) on such day on such transactions as determined by
Administrative Agent (which determination shall be conclusive and binding,
absent manifest error).
FINANCIAL STATEMENTS means balance sheets, statements of operations,
statements of shareholders' investments, and statements of cash flows prepared
in accordance with GAAP, which statements of operations and statements of cash
flows shall be in comparative form to the corresponding period of the preceding
fiscal year, and which balance sheets and statements of shareholders'
investments shall be in comparative form to the prior fiscal year-end figures.
FIXED CHARGE COVERAGE RATIO means, for the Companies on a consolidated
basis and without duplication, at any date of determination, the ratio of: (a)
the sum of (i) EBITDA of the Companies for the most recently ended Rolling
Period minus (ii) the amount paid for Capital Expenditures by the Companies
during such Rolling Period minus (iii) Taxes paid in cash during such Rolling
Period to (b) Fixed Charges determined as of such date of determination.
FIXED CHARGES means, with respect to the Companies on a consolidated
basis and without duplication, the sum of (a) all regularly-scheduled principal
payments with respect to Debt (other than the Principal Debt) required to be
paid within the twelve (12) months following such date of determination, (b)
Capital Lease payments, (c) cash Interest Expense, and (d) Distributions paid in
cash by ACS (each of the foregoing items (b), (c), and (d) calculated for the
most recently ended Rolling Period).
FOREIGN STOCK PLEDGE means (a) a Foreign Stock Pledge Agreement or
similar document in form and upon terms reasonably satisfactory to
Administrative Agent and ACS, in which the respective Pledgor grants a
perfected, first priority Lien to Administrative Agent (for the benefit of
Lenders) in and to 65% of the outstanding Stock of a Foreign Subsidiary of such
Pledgor, which Foreign Stock Pledge is executed and delivered by any Person
pursuant to the requirements of the Loan Documents, and (b) any amendments,
modifications, supplements, restatements, or reaffirmations of any Foreign Stock
Pledge made in accordance with the Loan Documents.
FOREIGN SUBSIDIARY of any Person means a Subsidiary of such Person that
is organized or incorporated under the Laws of a jurisdiction other than a
jurisdiction of the United States.
FUNDED DEBT means, on any date of determination, the Debt of the
Companies determined on a consolidated basis, excluding any Debt described in
CLAUSE (i) of the definition of "Debt" set forth in this SECTION 1.1.
GAAP means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board which are applicable from time to time.
GOVERNMENTAL AUTHORITY means any local, state, municipal, or federal
judicial, executive, or legislative instrumentality, or, solely for purposes of
SECTION 4, any central bank.
GUARANTOR means any Person, including, but not limited to, any Domestic
Subsidiary of ACS, who undertakes to be liable for all or any part of the
Obligation by execution of a Guaranty or otherwise.
GUARANTY means (a) a Guaranty in substantially the form and upon the
terms of EXHIBIT C, executed and delivered by any Person pursuant to the
requirements of the Loan Documents; and (b)
9 ACS CREDIT AGREEMENT
any amendments, modifications, supplements, restatements, ratifications, or
reaffirmations of any Guaranty made in accordance with the Loan Documents.
HAZARDOUS SUBSTANCE means (a) any substance that is designated,
defined, or classified as a hazardous waste, hazardous material, pollutant,
contaminant, or toxic or hazardous substance, or that is otherwise regulated,
under any Environmental Law, including without limitation, any hazardous
substance within the meaning of Section 101(14) of CERCLA, (b) petroleum, oil,
gasoline, natural gas, fuel oil, motor oil, waste oil, diesel fuel, jet fuel,
and other petroleum hydrocarbons, (c) asbestos and asbestos-containing materials
in any form, (d) polychlorinated biphenyls, or (e) urea formaldehyde foam.
INCLUDED FOREIGN SUBSIDIARY means any Foreign Subsidiary of any Pledged
Foreign Subsidiary whose EBITDA is included in the calculation of the Coverage
Requirement as permitted by SECTION 6.1.
INTEREST EXPENSE means, for any period of calculation thereof, for the
Companies on a consolidated basis and without duplication, the aggregate amount
of all interest (including commitment fees) on all Debt (other than Debt
described in CLAUSE (i) of the definition of Debt) of the Companies, whether
paid in cash or accrued as a liability and payable in cash during such period
(including, without limitation, imputed interest on Capital Lease obligations
and Attributable Debt; the amortization of any original issue discount on any
Debt; the interest portion of any deferred payment obligation; all commissions,
discounts, and other fees and charges owed with respect to letters of credit or
bankers' acceptance financing), and all cash premiums or penalties for the
repayment, redemption, or repurchase of Debt.
INTEREST PERIOD is determined in accordance with SECTION 3.10.
LAWS means all applicable statutes, laws, treaties, ordinances, tariff
requirements, rules, regulations, orders, writs, injunctions, decrees,
judgments, opinions, or interpretations of any Governmental Authority.
LC means the letter(s) of credit issued hereunder in the form agreed
upon among ACS, the applicable LC Issuer, and the beneficiary thereof at the
time of issuance thereof and participated in by Lenders pursuant to the terms
and conditions of SECTION 2 hereof.
LC AGREEMENT means a letter of credit application and agreement (in
form and substance satisfactory to the applicable LC Issuer) submitted by ACS to
the applicable LC Issuer for an LC for its own account (and for its benefit or
the benefit of any other Company); provided that this Agreement shall control
any conflict between this Agreement and any such LC Agreement.
LC EXPOSURE means, at any time and without duplication, the sum of the
Dollar Equivalent of (a) the aggregate undrawn portion of all uncancelled and
unexpired LCs plus (b) the aggregate unpaid reimbursement obligations of
Borrowers in respect of drawings of drafts under any LC.
LC ISSUER means with respect to each LC, the Lender that issues such LC
and shall be either (a) Xxxxx Fargo or (b) any other Lender that has agreed in
writing to issue, increase, or extend one or more LCs under this Agreement and
has been approved by Administrative Agent and ACS; provided that no more than
two Lenders (other than Xxxxx Fargo) may be LC Issuers at any date of
determination. Any Lender may resign as LC Issuer upon giving 30 days prior
written notice to Borrowers; provided that such Lender shall continue to be a LC
Issuer for purposes of this Agreement for all LCs issued at the time of such
resignation until such time as such LCs expire or are replaced.
LC REQUEST means a request pursuant to SECTION 2.2(a), substantially in
the form of EXHIBIT B-3.
10 ACS CREDIT AGREEMENT
LC SUBFACILITY means a subfacility of the Revolver Facility for the
issuance of LCs as described in and subject to the limitations of SECTION 2.2,
under which the Dollar Equivalent of the LC Exposure may never (a) collectively
exceed $500,000,000 and (b) together with the Principal Debt may never exceed
the Revolver Commitment.
LENDERS means, on any date of determination, the financial institutions
named on SCHEDULE 2.1 (as the same may be amended from time to time by
Administrative Agent to reflect the addition of new Lenders pursuant to SECTION
2.4 and to reflect the assignments made in accordance with SECTION 13.12(b) of
this Agreement, and subject to the terms and conditions of this Agreement), and
their respective successors and assigns (but not any Participant who is not
otherwise a party to this Agreement).
LEVERAGE RATIO means, with respect to the Companies on a consolidated
basis and without duplication, at any date of determination thereof, the ratio
of (a) the Funded Debt outstanding on such date to (b) Adjusted EBITDA.
LIEN means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and any other
Right of or arrangement with any creditor (other than under or relating to
subordination or other intercreditor arrangements) to have its claim satisfied
out of any property or assets, or the proceeds therefrom, prior to the general
creditors of the owner thereof.
LITIGATION means any action by or before any Governmental Authority.
LOAN ACCOUNT means any record (including, without limitation, the
Register) maintained by any Lender in the ordinary course of business or by
Administrative Agent evidencing the Principal Debt owed to each Lender.
LOAN DOCUMENTS means (a) this Agreement, the Notes, the Guaranties, the
Foreign Stock Pledges, LCs, and LC Agreements, (b) all other agreements,
documents, or instruments in favor of Agents or Lenders ever executed and
delivered pursuant to this Agreement or otherwise executed and delivered in
connection with all or any part of the Obligation, and (c) any and all future
renewals, extensions, restatements, reaffirmations, or amendments of, or
supplements to, all or any part of the foregoing.
LOAN PARTIES means, on any date of determination, all Borrowers, all
Guarantors, and all Pledgors.
MANAGING AGENTS means, collectively, Fleet National Bank, The Royal
Bank of Scotland plc, and SunTrust Bank.
MATERIAL ADVERSE EVENT means any set of one or more circumstances or
events which, individually or collectively, could reasonably be expected to
result in or cause any (a) material impairment of the ability of the Loan
Parties, taken as a whole, to perform any of their payment or other material
obligations under the Loan Documents described in CLAUSE (a) of the definition
thereof or material and adverse effect on the validity or enforceability of the
Loan Documents described in CLAUSE (a) of the definition thereof or in the
ability of Administrative Agent or any Lender to enforce any such obligations or
any of their respective material Rights under the Loan Documents described in
CLAUSE (a) of the definition thereof, or (b) material and adverse effect on the
business, properties, condition (financial or otherwise), or results of
operations the Companies, taken as a whole.
MATERIAL AGREEMENT means any written or oral agreement, contract,
commitment, or understanding under which any Company is obligated to make
payments or is entitled to receive revenues in excess of 5% of the consolidated
Net Worth of the Companies in any fiscal year.
11 ACS CREDIT AGREEMENT
MATERIAL SUBSIDIARY means any Subsidiary or group of Subsidiaries of
ACS that individually or collectively satisfies either of the following
financial criteria: (a) as of the most recently ended Rolling Period, the EBITDA
of such Subsidiary or group of Subsidiaries of ACS exceeds 5% of the EBITDA of
all of the Companies, or (b) on any date of determination, the book value of the
total assets of such Subsidiary or group of Subsidiaries of ACS exceeds 1% of
the book value of all assets of all of the Companies.
MAXIMUM AMOUNT and MAXIMUM RATE respectively mean, for each Lender, the
maximum non-usurious amount and the maximum non-usurious rate of interest which,
under applicable Law, such Lender is permitted to contract for, charge, take,
reserve, or receive on the Obligation.
MAXIMUM REVOLVER COMMITMENT means an amount equal to $900,000,000,
which amount shall not be increased without the approval of all of the Lenders.
XXXXX'X means Xxxxx'x Investors Services, Inc., or, if Xxxxx'x no
longer publishes ratings, another nationally recognized rating agency acceptable
to Administrative Agent and ACS.
MULTIEMPLOYER PLAN means a multiemployer plan as defined in Sections
3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to which any Company
or any ERISA Affiliate is making, has made, is accruing, or has accrued, an
obligation to make contributions or has, within any of the preceding five plan
years, made or accrued an obligation to make contributions.
NET WORTH means, as of any date of determination, the shareholders
equity (excluding any minority interests) of the Companies on a consolidated
basis as of that date determined in accordance with GAAP.
NOTES means, at the time of any determination thereof, all outstanding
and unpaid Revolver Notes and the Swing Line Note.
OBLIGATION means all present and future indebtedness, liabilities, and
obligations, and all renewals and extensions thereof, or any part thereof, now
or hereafter owed to Administrative Agent, any other Agent, any Lender, or any
Affiliate of any Lender by any Company arising from, by virtue of, or pursuant
to any Loan Document, together with all interest accruing thereon, fees, costs,
and expenses (including, without limitation, all reasonable attorneys' fees and
expenses incurred in the enforcement or collection thereof) payable under the
Loan Documents.
OSHA means the Occupational Safety and Health Act of 1970, 29 U.S.C.
Section 671 et seq.
PARTICIPANT is defined in SECTION 13.12(e).
PBGC means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
PERMITTED LIENS means, with respect to the Companies, Liens permitted
under SECTION 9.13 as described in such Section.
PERSON means any individual, entity, or Governmental Authority.
PLEDGED FOREIGN SUBSIDIARY means any Foreign Subsidiary of ACS whose
stock is pledged pursuant to a Foreign Stock Pledge.
12 ACS CREDIT AGREEMENT
PLEDGOR means any Person, including, but not limited to, any Domestic
Subsidiary of ACS, who executes a Foreign Stock Pledge pursuant to the terms of
this Agreement.
POTENTIAL DEFAULT means the occurrence of any event or existence of any
circumstance which, with the giving of notice or lapse of time or both, would
become a Default.
POUNDS STERLING and the symbol POUND STERLING means the lawful currency
of the United Kingdom.
PRIME RATE means the per annum rate of interest established from time
to time by Xxxxx Fargo, as its prime rate, which rate may not be the lowest rate
of interest charged by Xxxxx Fargo to its customers.
PRINCIPAL DEBT means, on any date of determination, the aggregate
unpaid principal balance of all Borrowings under the Revolver Facility
(including, without limitation, Borrowings under the Swing Line Subfacility),
together with (but without duplication) the aggregate unpaid reimbursement
obligations of any Borrower in respect of drawings under any LC.
PRO RATA or PRO RATA PART, for each Lender, means on any date of
determination (a) the proportion which the Principal Debt owed to such Lender
(whether held directly or through a participation and determined after giving
effect thereto) bears to the Principal Debt owed to all Lenders at the time in
question, and (b) if no Principal Debt is outstanding, then the proportion that
the aggregate of such Lender's Committed Sums then in effect bears to the
Revolver Commitment then in effect.
RECEIVABLES FINANCING AMOUNT is defined in SECTION 9.20.
REGISTER is defined in SECTION 13.12(c).
REGULATION D means Regulation D of the Board of Governors of the
Federal Reserve System, as amended.
REGULATION U means Regulation U of the Board of Governors of the
Federal Reserve System, as amended.
RELEASE means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposal,
deposit, dispersal, migrating, or other movement into the air, ground, or
surface water, or soil.
REPORTABLE EVENT shall have the meaning specified in Section 4043 of
ERISA or the regulations issued thereunder in connection with an Employee Plan,
excluding events for which the notice requirement is waived under applicable
PBGC regulations other than those events described in sections 4043.21, 4043.24,
and 4043.28 of such regulations, including each such provision as it may
subsequently be renumbered.
REPRESENTATIVES means representatives, officers, directors, employees,
attorneys, and agents.
REQUIRED LENDERS means (a) on any date of determination on and after
the date of the Closing Date and prior to the Termination Date, those Lenders
holding 50.1% or more of the Revolver Commitment; and (b) on any date of
determination on or after the Termination Date, those Lenders holding 50.1% or
more of the sum of (without duplication) (i) Principal Debt plus (ii) the
aggregate Rights and benefits of Lenders with respect to LCs, whether such
Rights and benefits result from Lenders' issuance of LCs or participations in
LCs under SECTION 2.2(b).
13 ACS CREDIT AGREEMENT
RESERVE REQUIREMENT means, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special, supplemental, or
emergency reserves) are required to be maintained under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) by member banks of the Federal Reserve System against, in the case of
Eurodollar Rate Borrowings, "Eurocurrency liabilities" (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the Reserve
Requirement shall reflect any other reserves required to be maintained by such
member banks with respect to (a) any category of liabilities which includes
deposits by reference to which the Adjusted Eurodollar Rate is to be determined,
or (b) any category of extensions of credit or other assets which include
Eurodollar Rate Borrowings. The Adjusted Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Requirement.
RESPONSIBLE OFFICER means the chairman, chief executive officer,
president, chief financial officer, executive vice president, treasurer, or
assistant treasurer of ACS, or, for all purposes under the Loan Documents, any
other officer designated from time to time by the Board of Directors of ACS,
which designated officer is reasonably acceptable to Administrative Agent.
REVOLVER COMMITMENT means an amount (subject to reduction,
cancellation, or increase as herein provided) equal to $875,000,000.
REVOLVER COMMITMENT USAGE means, at the time of any determination
thereof, the sum of (a) the aggregate Principal Debt (including the Swing Line
Principal Debt) plus, without duplication, (b) the LC Exposure.
REVOLVER FACILITY means the credit facility as described in and subject
to the limitations set forth in SECTION 2.1 hereof, including the LC Subfacility
and the Swing Line Subfacility.
REVOLVER NOTE means any promissory note executed pursuant to SECTION
3.1(b) in substantially the form of EXHIBIT A-1, and all renewals and extensions
of all or any part thereof.
RIGHTS means rights, remedies, powers, privileges, and benefits.
ROLLING PERIOD means, on any date of determination, the most recent
four fiscal quarters ended on March 31, June 30, September 30, or December 31
(as the case may be).
SCHEDULE means, unless specified otherwise, a schedule attached to this
Agreement, as the same may be supplemented and modified from time to time in
accordance with the terms of the Loan Documents.
SENIOR MANAGING AGENT means Wachovia Bank, National Association.
SOLVENT means, as to a Person, that (a) the aggregate fair market value
of such Person's assets exceeds its liabilities (whether or not such liability
is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured), (b) such Person has
sufficient cash flow to enable it to pay its debts as they mature, and (c) such
Person does not have unreasonably small capital to conduct such Person's
businesses. For purposes of this definition (i) "debt" means liability on a
"claim", (ii) "claim" means any (x) right to payment, whether or not such a
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured, or (y) right to an equitable remedy for breach of performance if such
breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured, or unsecured, (iii) unliquidated, contingent,
disputed, and unmatured claims shall be valued at the amount that can be
14 ACS CREDIT AGREEMENT
reasonably expected to be actual and matured, and (iv) any net intercompany
payable owed by one Company to another shall not be considered a liability.
S&P means Standard & Poor's Rating Group (a division of XxXxxx-Xxxx,
Inc.), or if S&P no longer publishes ratings, another nationally recognized
ratings agency acceptable to Administrative Agent and ACS.
STOCK means all shares, options, warrants, general or limited
partnership interests, membership interests, or other ownership interests
(regardless of how designated) of or in a corporation, partnership, limited
liability company, trust, or other business entity, whether voting or nonvoting,
including common stock, preferred stock, or any other similar "equity security"
(as such term is defined in Rule 3a11-1 of the General Rules and Regulations
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended).
SUBFACILITIES means, collectively, the LC Subfacility and the Swing
Line Subfacility; SUBFACILITY means, either of the LC Subfacility or the Swing
Line Subfacility.
SUBSIDIARY means, in respect of any Person, any corporation,
partnership, limited liability company, association, joint venture, or other
business entity of which more than fifty percent (50%) of the Stock having
ordinary voting power for the election of directors or other governing body
(other than Stock having such power only by reason of the happening of a
contingency) are at any time directly or beneficially, owned, held, or
controlled, directly or indirectly, by such Person.
SWING LINE BORROWING means any Borrowing under the Swing Line
Subfacility.
SWING LINE COMMITMENT means an amount (subject to availability,
reduction, or cancellation as herein provided) equal to $50,000,000.
SWING LINE LENDER means Xxxxx Fargo Bank Texas, National Association,
and its successors and assigns.
SWING LINE NOTE means any promissory note executed pursuant to SECTION
3.1(b) in substantially the form of EXHIBIT A-2, and all renewals and extensions
of all or any part thereof.
SWING LINE PRINCIPAL DEBT means, on any date of determination, that
portion of the Principal Debt outstanding under the Swing Line Subfacility.
SWING LINE SUBFACILITY means the subfacility under the Revolver
Facility described in, and subject to the limitations of, SECTION 2.3.
SYNTHETIC LEASE means a lease that is accounted for as an operating
lease for accounting purposes, but as a Capital Lease for tax purposes.
TAXES means, for any Person, taxes, assessments, or other governmental
charges or levies imposed upon such Person, its income, or any of its
properties, franchises, or assets.
TERMINATION DATE means the earlier of (a) December 31, 2005, and (b)
the effective date of any other termination, cancellation, or acceleration of
all commitments to lend under the Revolver Facility.
TYPE means any type of Borrowing determined with respect to the
interest option applicable thereto.
15 ACS CREDIT AGREEMENT
VOTING STOCK means securities (as such term is defined in Section 2(1)
of the Securities Act of 1933, as amended) of any class or classes, the holders
of which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or Persons performing similar functions).
XXXXX FARGO means Xxxxx Fargo Bank Texas, National Association, in its
individual capacity as a Lender, and its successors and assigns.
1.2 NUMBER AND GENDER OF WORDS; OTHER REFERENCES. Unless otherwise
specified in the Loan Documents, (a) where appropriate, the singular includes
the plural and vice versa, and words of any gender include each other gender,
(b) heading and caption references may not be construed in interpreting
provisions, (c) section, paragraph, annex, schedule, exhibit, and similar
references are to the particular Loan Document in which they are used, (d)
references to "telecopy," "facsimile," "fax," or similar terms are to facsimile
or telecopy transmissions, (e) references to "including" mean including without
limiting the generality of any description preceding that word, (f) the rule of
construction that references to general items that follow references to specific
items are limited to the same type or character of those specific items is not
applicable in the Loan Documents, (g) references to any Person include that
Person's heirs, personal representatives, successors, trustees, receivers, and
permitted assigns, (h) references to any Law include every amendment or
supplement to it, rule and regulation adopted under it, and successor or
replacement for it, and (i) references to any Loan Document or other document
include every renewal and extension of it, amendment and supplement to it, and
replacement or substitution for it.
1.3 ACCOUNTING PRINCIPLES. All accounting and financial terms used in
the Loan Documents and the compliance with each financial covenant therein shall
be determined in accordance with GAAP, and, all accounting principles shall be
applied on a consistent basis so that the accounting principles in a current
period are comparable in all material respects to those applied during the
preceding comparable period. If any Borrower or any Lender determines that a
change in GAAP from that in effect on the date hereof has altered the treatment
of certain financial data to its detriment under this Agreement, such party may,
by written notice to the others and Administrative Agent not later than ten (10)
days after the effective date of such change in GAAP, request renegotiation of
the financial covenants affected by such change. If Borrowers and Required
Lenders have not agreed on revised covenants within thirty (30) days after
delivery of such notice, then, for purposes of this Agreement, GAAP will mean
generally accepted accounting principles on the date just prior to the date on
which the change that gave rise to the renegotiation occurred.
1.4 CURRENCY REFERENCES. Unless otherwise specified herein, all dollar
amounts expressed herein shall refer to Dollars. Except as otherwise herein
specified, for purposes of calculating compliance with the terms of this
Agreement and the other Loan Documents (including for purposes of calculating
compliance with the covenants), each obligation or calculation shall be
converted to its Dollar Equivalent.
SECTION 2 BORROWING PROVISIONS.
2.1 REVOLVER FACILITY. Each Lender severally, but not jointly, agrees
to lend to Borrowers (on a joint and several liability basis) in Dollars such
Lender's Commitment Percentage of one or more Borrowings under the Revolver
Facility not to exceed such Lender's Committed Sum, which Borrowings may be
repaid and reborrowed from time to time in accordance with the terms and
provisions of the Loan Documents; provided that, (a) each such Borrowing must
occur on a Business Day and no later than the Business Day immediately preceding
the Termination Date; (b) each such Borrowing shall be in an amount not less
than $5,000,000 or a greater integral multiple of $1,000,000 if a Eurodollar
Rate Borrowing, $1,000,000 or a greater integral multiple of $100,000 if a Base
Rate Borrowing or $100,000 if a Swing Line Borrowing; and (c) on any date of
determination, the Revolver Commitment Usage shall never exceed the Revolver
Commitment.
16 ACS CREDIT AGREEMENT
2.2 LC SUBFACILITY.
(a) Conditions. Subject to the terms and conditions of this
Agreement and applicable Law, the applicable LC Issuer agrees to issue
LCs upon any Borrower's application therefor (denominated in Dollars
or, upon Borrowers' request and subject to this SECTION 2.2, in an
Alternative Currency) by delivering to Administrative Agent and the
applicable LC Issuer a properly completed LC Request and an LC
Agreement with respect thereto no later than 10:00 a.m. Dallas, Texas
time three Business Days before such LC is to be issued; provided that,
(i) on any date of determination and after giving effect to any LC to
be issued on such date, the Dollar Equivalent of the Revolver
Commitment Usage shall never exceed the Revolver Commitment then in
effect, (ii) on any date of determination and after giving effect to
any LC to be issued on such date, the Dollar Equivalent of the LC
Exposure shall never exceed $500,000,000 (as such commitment under the
LC Subfacility may be reduced or canceled as herein provided), (iii) at
the time of issuance of such LC, no Default or Potential Default shall
have occurred and be continuing, and (iv) each LC must expire no later
than one year from its issuance; provided that, any LC may provide for
automatic renewal for successive twelve month periods unless the
applicable LC Issuer has given prior notice to the applicable
beneficiary of its election not to extend such LC. Prior to issuing any
LC, the applicable LC Issuer shall confirm with Administrative Agent
that the condition in CLAUSE (i) above is satisfied.
(b) Participations. Immediately upon the issuance by any LC
Issuer of any LC, the applicable LC Issuer shall be deemed to have sold
and transferred to each other Lender, and each other such Lender shall
be deemed irrevocably and unconditionally to have purchased and
received from the applicable LC Issuer, without recourse or warranty,
an undivided interest and participation, to the extent of such Lender's
Commitment Percentage, in the Dollar Equivalent of such LC, the LC
Agreement related thereto, and all Rights of the applicable LC Issuer
in respect thereof (other than Rights to receive certain fees provided
for in SECTION 5.5(b)).
(c) Reimbursement Obligation. To induce LC Issuers to issue
and maintain LCs and to induce Lenders to participate in issued LCs,
Borrowers (jointly and severally) agree to pay or reimburse the
applicable LC Issuer (i) on the date on which any draft is presented
under any LC, the amount of any draft paid or to be paid by such LC
Issuer and (ii) promptly, upon demand, the amount of any fees (in
addition to the fees described in SECTION 5) which such LC Issuer
customarily charges to a Person similarly situated in the ordinary
course of its business for amending LC Agreements, for honoring drafts
under letters of credit, and taking similar action in connection with
letters of credit. If Borrowers have not reimbursed the applicable LC
Issuer for any drafts paid or to be paid within one (1) Business Day of
demand therefor by such LC Issuer, Borrowers shall be deemed to have
requested and Administrative Agent is hereby irrevocably authorized to
fund the Dollar Equivalent of such reimbursement obligations as a Base
Rate Borrowing to the extent of availability under the Revolver
Facility. The proceeds of such Borrowing shall be advanced directly to
the relevant LC Issuer in payment of Borrowers' unpaid reimbursement
obligation. If for any reason (including, without limitation, the
Termination Date has occurred), funds cannot be advanced under the
Revolver Facility, then Borrowers' reimbursement obligation shall
continue to be due and payable. Borrowers' obligations under this
SECTION 2.2(c) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim, or defense
to payment which any Borrower may have at any time against any LC
Issuer, Administrative Agent, or any other Person. From the date that
the applicable LC Issuer pays a draft under a LC until the date of
demand for reimbursement is made, the Dollar Equivalent of unpaid
reimbursement obligations shall accrue interest at the Base Rate, which
accrued interest shall be payable on demand; and, thereafter until the
related reimbursement obligation of Borrowers is paid or funded by
proceeds of a Borrowing, the Dollar
17 ACS CREDIT AGREEMENT
Equivalent of unpaid reimbursement obligations shall accrue interest at
the Default Rate, which accrued interest shall be payable on demand.
(d) General. Each LC Issuer shall promptly notify Borrowers
and Administrative Agent of the date and the Dollar Equivalent of the
amount of any draft presented for honor under any LC issued by such LC
Issuer (but failure to give any such notice shall not affect Borrowers'
obligations under this Agreement). The applicable LC Issuer shall pay
the Dollar Equivalent of the requested amount upon presentment of a
draft for honor unless such presentment on its face does not comply
with the terms of the applicable LC. When making payment, the
applicable LC Issuer may disregard (i) any default or potential default
that exists under any other agreement and (ii) the obligations under
any other agreement that have or have not been performed by the
beneficiary or any other Person (and the applicable LC Issuer shall not
be liable for any obligation of any Person thereunder). Borrowers'
reimbursement obligations to the LC Issuers, Administrative Agent, and
Lenders, and each Lender's obligations to the LC Issuers and
Administrative Agent, under this SECTION 2.2 are absolute and
unconditional irrespective of, and the LC Issuers and Administrative
Agent are not responsible for, (i) the validity, enforceability,
sufficiency, accuracy, or genuineness of documents or endorsements
which appear appropriate on their face (even if they are in any respect
invalid, unenforceable, insufficient, inaccurate, fraudulent, or
forged), (ii) any dispute by any Company with or any Company's claims,
setoffs, defenses, counterclaims, or other Rights against any LC
Issuer, Administrative Agent, any Lender, or any other Person, or (iii)
the occurrence of any Potential Default or Default. However, nothing in
this SECTION 2.2 constitutes a waiver of the Rights of any Borrower or
any Lender to assert any claim or defense based upon the gross
negligence or willful misconduct of any LC Issuer. To the extent any
Lender has funded its ratable share of any draft under an LC, then
Administrative Agent shall promptly distribute reimbursement payments
received from Borrowers to such Lender according to its ratable share.
In the event any payment by Borrowers received by Administrative Agent
with respect to any LC and distributed to Lenders on account of their
participations therein is thereafter set aside, avoided, or recovered
from Administrative Agent in connection with any receivership,
liquidation, or bankruptcy proceeding, each Lender which received such
distribution shall, upon demand by Administrative Agent, contribute
such Lender's ratable portion of the Dollar Equivalent of the amount
set aside, avoided, or recovered, together with interest at the rate
required to be paid by Administrative Agent upon the amount required to
be repaid by it.
(e) Obligation of Lenders. If Borrowers fail to reimburse any
LC Issuer as provided in SECTION 2.2(c) within one (1) Business Day of
the demand therefor by such LC Issuer and funds cannot be advanced
under the Revolver Facility to satisfy the reimbursement obligations,
then such LC Issuer shall promptly notify Administrative Agent of such
fact and Administrative Agent shall promptly notify each Lender of
Borrowers' failure, of the date and the Dollar Equivalent of the amount
of the draft paid, and of such Lender's Commitment Percentage thereof.
Each Lender shall promptly and unconditionally fund its participation
interest in such unreimbursed draft by making available to
Administrative Agent (for the benefit of the relevant LC Issuer) in
Dollars in immediately available funds such Lender's Commitment
Percentage of the Dollar Equivalent of the unreimbursed draft. Funds
are due and payable to Administrative Agent on or before 1:00 p.m.,
Dallas, Texas time on the Business Day when Administrative Agent gives
notice to each Lender of Borrowers' reimbursement failure (if given
prior to 10:00 a.m., Dallas, Texas time) or on the next succeeding
Business Day (if notice was given after 10:00 a.m., Dallas, Texas
time). All amounts payable by any Lender shall accrue interest at the
Federal Funds Rate from the day the applicable draft is paid by the
relevant LC Issuer to (but not including) the date the amount is paid
by the Lender to Administrative Agent.
18 ACS CREDIT AGREEMENT
(f) Duties of LC Issuers. Each LC Issuer agrees with each
Lender that it will exercise and give the same care and attention to
each LC that it issues as it gives to its other letters of credit. No
LC Issuer shall have any liability to any Lender with respect to such
LCs (other than liability arising from the gross negligence or willful
misconduct of such LC Issuer). Each Lender and each Borrower agree
that, in paying any draw under any LC, no LC Issuer shall have any
responsibility to obtain any document (other than any documents
required by the respective LC) or to ascertain or inquire as to any
document's validity, enforceability, sufficiency, accuracy, or
genuineness or the authority of any Person delivering any such
document. LC Issuers, Administrative Agent, Lenders, and their
respective Representatives shall not be liable to any other Lender or
any Company for any LC's use or for any beneficiary's acts or
omissions. Any action, inaction, error, delay, or omission taken or
suffered by any LC Issuer, Administrative Agent, or any of their
Representatives under or in connection with any LC, applicable drafts
or documents, or the transmission, dispatch, or delivery of any related
message or advice, if in good faith and in conformity with such Laws as
any LC Issuer, Administrative Agent, or any of their Representatives
may deem applicable and in accordance with the standards of care
specified in the Uniform Customs and Practice for Documentary Credits
issued by the International Chamber of Commerce, as in effect on the
date of issue of such LC, shall be binding upon the Companies and
Lenders and shall not place any LC Issuer, Administrative Agent, or any
of their Representatives under any resulting liability to any Company
or any Lender. No less than once each month, each LC Issuer shall give
a summary report of the issued and outstanding LCs of such LC Issuer to
Administrative Agent, in form and substance satisfactory to
Administrative Agent, and Administrative Agent shall distribute such
summary reports to Lenders promptly upon receipt thereof.
(g) Cash Collateral. On the Termination Date, or on any date
that the LC Exposure exceeds the then-effective commitment under the LC
Subfacility, or upon any demand by any LC Issuer upon the occurrence
and during the continuance of a Default, Borrowers shall provide to
Administrative Agent, for the benefit of LC Issuers and Lenders, (i)
cash collateral in Dollars in an amount equal to 100% of the Dollar
Equivalent of the LC Exposure existing on such date, such cash and all
interest thereon shall constitute cash collateral for all LCs, and (ii)
such additional cash collateral as any LC Issuer or Administrative
Agent may from time to time require, so that the cash collateral amount
shall at all times equal or exceed 100% of the Dollar Equivalent of the
LC Exposure. Any cash collateral deposited under this CLAUSE (g), and
all interest earned thereon, shall be held by Administrative Agent and
invested and reinvested at the expense and the written direction of
Borrowers in U.S. Treasury Bills with maturities of no more than ninety
(90) days from the date of investment and all interest paid thereon
shall remain property of Borrowers. Without limiting the Rights of
Administrative Agent and any LC Issuer, if any draft under any LC is
presented for payment and Borrowers do not reimburse the applicable LC
Issuer within the time period required by this SECTION 2.2, after
notice from the applicable LC Issuer of such failure, Administrative
Agent may apply any cash collateral held by Administrative Agent to the
reimbursement obligation. Any costs related to liquidation or breakage
prior to maturity of any investment shall be borne by Borrowers.
(h) INDEMNIFICATION. EACH BORROWER SHALL PROTECT, INDEMNIFY,
PAY, AND SAVE EACH LC ISSUER, ADMINISTRATIVE AGENT, AND EACH LENDER
HARMLESS FROM AND AGAINST THE DOLLAR EQUIVALENT OF ANY AND ALL CLAIMS,
DEMANDS, LIABILITIES, DAMAGES, OR LOSSES OF, OR OWED TO THIRD PARTIES
(INCLUDING ANY OF THE FOREGOING ARISING FROM THE NEGLIGENCE OF ANY LC
ISSUER, ADMINISTRATIVE AGENT, LENDERS, OR THEIR RESPECTIVE
REPRESENTATIVES), AND ANY AND ALL RELATED COSTS, CHARGES, AND EXPENSES
(INCLUDING REASONABLE ATTORNEYS' FEES), WHICH ANY LC ISSUER,
ADMINISTRATIVE AGENT, OR ANY LENDER MAY INCUR OR BE SUBJECT TO AS A
CONSEQUENCE, DIRECT OR INDIRECT, OF (I) THE ISSUANCE OF ANY LC, (II)
ANY DISPUTE
19 ACS CREDIT AGREEMENT
ABOUT A LC, OR (III) THE FAILURE OF ANY LC ISSUER TO HONOR A DRAFT
UNDER SUCH LC AS A RESULT OF ANY ACT OR OMISSION (WHETHER RIGHT OR
WRONG) OF ANY PRESENT OR FUTURE GOVERNMENTAL AUTHORITY. HOWEVER, NO
PERSON IS ENTITLED TO INDEMNITY HEREUNDER FOR ITS OWN GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT. THE FOREGOING INDEMNITY PROVISIONS SHALL SURVIVE
THE SATISFACTION AND PAYMENT OF THE OBLIGATION AND TERMINATION OF THIS
AGREEMENT.
(i) LC Agreements. Although referenced in any LC, terms of any
particular agreement or other obligation to the beneficiary are not
incorporated into this Agreement in any manner. The fees and other
amounts payable with respect to each LC are as provided in this
Agreement, drafts under any LC shall be deemed part of the Obligation,
and in the event of any conflict between the terms of this Agreement
and any LC Agreement, the terms of this Agreement shall be controlling.
(j) Currency Fluctuation. If as a result of fluctuations in
currency exchange rates (which shall be calculated by Administrative
Agent no less often than monthly), the aggregate of the Commitment
Usage exceeds the amount of the Revolver Commitment, the Borrowers
shall within 5 Business Days prepay outstanding Principal Debt in an
amount equal to such excess or, if such excess is greater than the
amount of all outstanding Principal Debt, shall within 5 Business Days
prepay all outstanding Principal Debt and deliver to Administrative
Agent cash collateral in an amount equal to the remaining excess after
giving effect to such prepayment.
(k) Existing Letters of Credit. All Existing Letters of Credit
shall be deemed to have been issued pursuant to this Agreement, and
after the Closing Date shall be subject to and governed by the terms
and conditions of this Agreement; provided that Borrowers shall not be
required to pay the fees required by SECTION 5.5(b) with respect to the
issuance of such Existing Letters of Credit, but shall be obligated to
pay such fees with respect to any extensions of such Existing Letters
of Credit.
2.3 SWING LINE SUBFACILITY.
(a) For the convenience of the parties and as an integral part
of the transactions contemplated by the Loan Documents, Swing Line
Lender, solely for its own account, agrees to make any requested
Borrowing of $100,000 or a greater integral multiple thereof, subject
to those terms and conditions applicable to Borrowings set forth in
SECTIONS 7.2(c) through (e), directly to Borrowers as a Swing Line
Borrowing without requiring any other Lender to fund its Pro Rata Part
thereof unless and until SECTION 2.3(b) is applicable; provided that:
(i) each Swing Line Borrowing must occur on a Business Day and no later
than the Business Day immediately preceding the Termination Date; (ii)
the aggregate Swing Line Principal Debt outstanding on any date of
determination shall not exceed the Swing Line Commitment; (iii) on any
date of determination, the Revolver Commitment Usage shall never exceed
the Revolver Commitment; (iv) the Principal Debt outstanding on any
date of determination shall not exceed the Revolver Commitment then in
effect; (v) at the time of such Swing Line Borrowing, no Default or
Potential Default shall have occurred and be continuing; (vi) each
Swing Line Borrowing shall bear interest at a rate per annum equal to
the Base Rate; provided that at any time after Lenders are deemed to
have purchased, pursuant to SECTION 2.3(b), a participation in any
Swing Line Borrowing, such Borrowing shall bear interest at the Default
Rate; and (vii) no additional Swing Line Borrowing shall be made at any
time after any Lender has refused, notwithstanding the requirements of
SECTION 2.3(b), to purchase a participation in any Swing Line Borrowing
as provided in such Section, and until such purchase shall occur or
until the Swing Line Borrowing has been repaid. Each Swing Line
Borrowing shall be available and may be prepaid on same day telephonic
notice from any Borrower to Swing Line Lender, so long as such notice
is received by Swing Line
20 ACS CREDIT AGREEMENT
Lender prior to 2:00 p.m., Dallas, Texas time. Accrued interest on
Swing Line Borrowings shall be due and payable on the 10th Business Day
of each of January, April, July, and October and on the Termination
Date.
(b) Borrowers shall be jointly and severally liable for all
Swing Line Borrowings. Borrowings under the Swing Line Subfacility
shall be due no later than five Business Days after such Swing Line
Borrowing is made. If Borrowers fail to repay any Swing Line Borrowing
as provided herein, then Borrowers shall be deemed to have requested
and Administrative Agent is hereby irrevocably authorized to fund such
amount as a Base Rate Borrowing to the extent of availability under the
Revolver Facility. If funds cannot be or are not advanced under the
Revolver Facility to satisfy the obligations under the Swing Line
Subfacility, Administrative Agent shall timely notify each Lender of
such failure and of the date and amount not paid. No later than the
close of business on the date such notice is given (if such notice was
given prior to 12:00 noon, Dallas, Texas time on any Business Day, or,
if made at any other time, on the next Business Day following the date
of such notice), each Lender shall be deemed to have irrevocably and
unconditionally purchased and received from Swing Line Lender an
undivided interest and participation in such Swing Line Borrowing to
the extent of such Lender's Pro Rata Part thereof, and each Lender
shall make available to Swing Line Lender in immediately available
funds such Lender's Pro Rata Part of the unpaid amount of such Swing
Line Borrowing. All such amounts payable by any Lender shall include
interest thereon from the date on which such payment is payable by such
Lender to, but not including, the date such amount is paid by such
Lender to Administrative Agent, at the Federal Funds Rate. If such
Lender does not promptly pay such amount upon Administrative Agent's
demand therefor, and until such time as such Lender makes the required
payment, Swing Line Lender shall be deemed to continue to have
outstanding a Swing Line Borrowing in the amount of such unpaid
obligation. Each payment by Borrowers of all or any part of any Swing
Line Borrowing shall be paid to Administrative Agent for the ratable
benefit of Swing Line Lender and those Lenders who have funded their
participations in such Swing Line Principal Debt under this SECTION
2.3(b); provided that, with respect to any such participation, all
interest accruing on the Swing Line Principal Debt to which such
participation relates prior to the date of funding such participation
shall be payable solely to Swing Line Lender for its own account. In
the event that any payment received by the Swing Line Lender is
required to be returned, each Lender will return to the Swing Line
Lender any portion thereof previously distributed by the Swing Line
Lender to it.
(c) Notwithstanding anything to the contrary in this
Agreement, each Lender's obligation to fund the Borrowings and to
purchase and fund participating interests pursuant to SECTION 2.3(b)
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff,
counterclaim, recoupment, defense, or other Right which such Lender or
any Borrower may have against the Swing Line Lender, any Borrower, or
any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Potential Default or a Default or the failure to
satisfy any of the conditions specified in SECTION 7; (iii) any adverse
change in the condition (financial or otherwise) of any Company; (iv)
any breach of this Agreement by any Borrower, any Guarantor, or any
Lender; or (v) any other circumstance, happening, or event whatsoever,
whether or not similar to any of the foregoing.
2.4 INCREASE IN REVOLVER COMMITMENT. So long as no Default or Potential
Default exists or arises as a result therefrom, Borrowers may from time to time
request any one or more Lenders to increase their respective Committed Sums or
request other financial institutions first approved by Administrative Agent
(such approval not to be unreasonably withheld or delayed) to agree to a
Committed Sum (in an aggregate amount of not less than $25,000,000 or such
lesser amount as may be available under the Maximum Revolver Commitment), so
that the Revolver Commitment may be increased to no more than the Maximum
Revolver Commitment. Any such increase of the Revolver
21 ACS CREDIT AGREEMENT
Commitment must be effected by an amendment that is executed in accordance with
SECTION 13.10 by Borrowers, Administrative Agent, and the one or more Lenders
who have agreed to increase their Committed Sums or by new Lenders who have
agreed to new Committed Sums. No Lender is obligated to increase its Committed
Sum under any circumstances, and no Lender's Committed Sum may be increased
except by its execution of an amendment to this Agreement in accordance with
SECTION 13.10. Each new Lender providing such additional Committed Sum shall be
a "Lender" hereunder, entitled to the rights and benefits, and subject to the
duties, of a Lender under the Loan Documents. In such case, each Lender's
Commitment Percentage shall be recalculated to reflect the new proportionate
share of the revised Revolver Commitment and the Lender responsible for the
additional Committed Sum (the "PURCHASING LENDER") shall, immediately upon
receiving notice from Administrative Agent, pay to each Lender an amount equal
to its Pro Rata Part of the Principal Debt outstanding as of such date. All such
payments with respect to the Principal Debt shall reduce the outstanding
Principal Debt owed to each Lender receiving such payments and shall represent
advances under the Revolver Facility to Borrowers by the purchasing Lender; all
such payments with respect to funded participations under the Swing Line
Subfacility or LC Subfacility (as the case may be) shall reduce the applicable
participation of each Lender receiving such payment and shall represent the
purchase by the purchasing Lender of a participation under the Swing Line
Subfacility or the LC Subfacility (as the case may be). The purchasing Lender
shall be entitled to share ratably in interest accruing on the balances
purchased, at the rates provided herein for such balances, from and after the
date of purchase. All new Borrowings under the Revolver Facility occurring after
an increase of the Revolver Commitment shall be funded in accordance with the
Lender's revised Commitment Percentages.
2.5 TERMINATIONS OR REDUCTIONS OF COMMITMENTS.
(a) Voluntary Commitment Reduction. Without premium or
penalty, and upon giving not less than five Business Days prior written
and irrevocable notice to Administrative Agent, Borrowers may terminate
in whole or in part the unused portion of the Revolver Commitment, the
Swing Line Commitment, or the commitment under the LC Subfacility;
provided that: (i) each partial termination of the Revolver Commitment
shall be in an amount of not less than $25,000,000 or a greater
integral multiple of $5,000,000; each partial termination of the Swing
Line Commitment or the commitment under the LC Subfacility shall be in
an amount of not less than $5,000,000 or a greater integral multiple of
$1,000,000; and (ii) on any date of determination, the amount of the
Revolver Commitment may not be reduced below the Revolver Commitment
Usage, the Swing Line Commitment may not be reduced below the Swing
Line Principal Debt, and the commitment under the LC Subfacility may
not be reduced below the LC Exposure unless the mandatory prepayment
required by SECTION 3.3(b) (if any) is made contemporaneously with such
reduction. At the time of any commitment termination under this SECTION
2.5, Borrowers shall pay to Administrative Agent, for the account of
each Lender, any amounts that may then be due under SECTION 3.3(b), all
accrued and unpaid fees then due and payable under this Agreement, the
interest attributable to the amount of that reduction, and any related
Consequential Loss. Any part of the Revolver Commitment, the Swing Line
Commitment, or the commitment under the LC Subfacility that is
terminated may not be reinstated.
(b) Additional Reductions. The Swing Line Commitment and the
commitment under the LC Subfacility shall each be reduced from time to
time on the date of any voluntary reduction of the Revolver Commitment
by the amount, if any, by which each such Subfacility exceeds the
Revolver Commitment after giving effect to such reduction of the
Revolver Commitment.
22 ACS CREDIT AGREEMENT
(c) Ratable Allocation of Revolver Commitment Reductions. Each
reduction of the Revolver Commitment under this SECTION 2.5 shall be
allocated among the Lenders in accordance with their respective
Commitment Percentages.
2.6 BORROWING PROCEDURE. The following procedures apply to all
Borrowings (other than Swing Line Borrowings and Borrowings pursuant to SECTIONS
2.2(c) or 2.3(b)):
(a) Borrowing Request. Any Borrower may request a Borrowing by
making or delivering a Borrowing Notice to Administrative Agent
requesting that Lenders fund a Borrowing on a certain date (the
"BORROWING DATE"), which Borrowing Notice (i) shall be irrevocable and
binding on Borrowers, (ii) must specify the Borrower or Borrowers which
are to receive all or any portion of such Borrowing and the amount of
such Borrowing to be advanced to such Borrower or Borrowers, (iii)
shall specify the Borrowing Date, amount, Type, and (for a Borrowing
comprised of Eurodollar Rate Borrowings) Interest Period, (iv) must be
signed by the requesting Borrower and concurred to by each other
Borrower, and (v) must be received by Administrative Agent no later
than 12:00 p.m. Dallas, Texas time on the third Business Day preceding
the Borrowing Date for any Eurodollar Rate Borrowing or 12:00 p.m.,
Dallas, Texas time on the Business Day preceding the Borrowing Date for
any Base Rate Borrowing. Administrative Agent shall timely notify each
Lender with respect to each Borrowing Notice.
(b) Funding. Each Lender shall remit its Commitment Percentage
of each requested Borrowing to Administrative Agent's principal office
in Dallas, Texas, in funds which are or will be available for immediate
use by Administrative Agent by 1:00 p.m. Dallas, Texas time on the
applicable Borrowing Date. Subject to receipt of such funds,
Administrative Agent shall (unless to its actual knowledge any of the
conditions precedent therefor have not been satisfied by Borrowers or
waived by the requisite Lenders under SECTION 13.10) make such funds
available to Borrowers on the Borrowing Date by causing such funds to
be deposited to the account designated to Administrative Agent by
Borrowers.
(c) Funding Assumed. Absent contrary written notice from a
Lender by 1:00 p.m. Dallas, Texas time on the applicable Borrowing
Date, Administrative Agent may assume that each Lender has made its
Commitment Percentage of the requested Borrowing available to
Administrative Agent on the applicable Borrowing Date, and
Administrative Agent may, in reliance upon such assumption (but shall
not be required to), make available to Borrowers a corresponding
amount. If a Lender fails to make its Commitment Percentage of any
requested Borrowing available to Administrative Agent on the applicable
Borrowing Date, Administrative Agent may recover the applicable amount
on demand, (i) from that Lender together with interest, commencing on
the Borrowing Date and ending on (but excluding) the date
Administrative Agent recovers the amount from that Lender, at an annual
interest rate equal to the Federal Funds Rate, or (ii) if that Lender
fails to pay its amount upon demand, then from Borrowers and, to the
extent of availability under the Swing Line Subfacility, Borrowers
shall be deemed to have requested and Swing Line Lender is hereby
irrevocably authorized to fund any amounts due from Borrowers pursuant
to this SECTION 2.6(c) as a Swing Line Borrowing. No Lender is
responsible for the failure of any other Lender to make its Commitment
Percentage of any Borrowing available as required by SECTION 2.6(b);
however, failure of any Lender to make its Commitment Percentage of any
Borrowing so available does not excuse any other Lender from making its
Commitment Percentage of any Borrowing so available.
23 ACS CREDIT AGREEMENT
SECTION 3 TERMS OF PAYMENT.
3.1 LOAN ACCOUNTS, NOTES, AND PAYMENTS.
(a) Loan Accounts; Noteless Transaction. Borrowers shall be
jointly and severally liable for the Principal Debt, which Principal
Debt owed to each Lender shall be evidenced by one or more Loan
Accounts or records maintained by such Lender in the ordinary course of
business. The Loan Accounts or records maintained by Administrative
Agent (including, without limitation, the Register) and each Lender
shall be prima facie evidence absent manifest error of the amount of
the Borrowings made by Borrowers from each Lender under this Agreement
and the interest and principal payments thereon. Any failure to so
record or any error in doing so shall not, however, limit or otherwise
affect the obligation of Borrowers under the Loan Documents to pay any
amount owing with respect to the Obligation.
(b) Notes. Upon the request of any Lender, made through
Administrative Agent, the Principal Debt owed to such Lender may be
evidenced by one or more of the following Notes (as the case may be):
(i) a Revolver Note and (ii) a Swing Line Note (with respect to the
Swing Line Lender only). In the event Notes are requested by any Lender
and upon the addition of or release of any Borrower (as contemplated by
SECTIONS 6.1 and 6.2), the then-existing Borrowers (after giving effect
to any such addition or release) shall promptly prepare, execute, and
deliver to each requesting Lender Notes payable to the order of such
Lender.
(c) Payment. Other than the LC fees payable directly to LC
Issuers pursuant to SECTION 5.5(b), all payments of principal,
interest, and other amounts to be made by Borrowers under this
Agreement and the other Loan Documents shall be made to Administrative
Agent at its principal office in Dallas, Texas in Dollars and in funds
which are or will be available for immediate use by Administrative
Agent by 12:00 noon Dallas, Texas time on the day due, without setoff,
deduction, or counterclaim. Payments made after 12:00 noon, Dallas,
Texas, time shall be deemed made on the Business Day next following.
Administrative Agent shall pay to each Lender any payment of principal,
interest, or other amount to which such Lender is entitled hereunder on
the same day Administrative Agent shall have received the same from
Borrowers; provided such payment is received by Administrative Agent
prior to 12:00 noon, Dallas, Texas time, and otherwise before 12:00
noon Dallas, Texas time on the Business Day next following.
(d) Payment Assumed. Unless Administrative Agent has received
notice from Borrowers prior to the date on which any payment is due
under this Agreement that Borrowers will not make that payment in full,
Administrative Agent may assume that Borrowers have made the full
payment due and Administrative Agent may, in reliance upon that
assumption, cause to be distributed to the appropriate Lender or LC
Issuer (as applicable) on that date the amount then due to such Lenders
or LC Issuer (as applicable). If and to the extent Borrowers do not
make the full payment due to Administrative Agent, each Lender or LC
Issuer (as applicable) shall repay to Administrative Agent on demand
the amount distributed to that Lender or LC Issuer (as applicable) by
Administrative Agent together with interest for each day from the date
that Lender or LC Issuer (as applicable) received payment from
Administrative Agent until the date that Lender or LC Issuer (as
applicable) repays Administrative Agent (unless such repayment is made
on the same day as such distribution), at an annual interest rate equal
to the Federal Funds Rate.
3.2 INTEREST AND PRINCIPAL PAYMENTS.
(a) Interest. Accrued interest on each Eurodollar Rate
Borrowing is due and payable on the last day of its respective Interest
Period, on the date of any prepayment set forth in SECTION 3.3, and on
the Termination Date; provided that, if any Interest Period is greater
than three months, then accrued interest is also due and payable on the
three month anniversary of the date on which such Interest Period
commences and on each three month anniversary thereafter, as well as on
the last day of such Interest Period. Accrued interest on each Base
Rate Borrowing
24 ACS CREDIT AGREEMENT
shall be due and payable on the 10th Business Day of each of January,
April, July, and October and on the Termination Date.
(b) Principal Debt. The Principal Debt is due and payable on
the Termination Date.
3.3 PREPAYMENTS.
(a) Optional Prepayments. Except as set forth herein, after
giving Administrative Agent advance written notice of the intent to
prepay, Borrowers may voluntarily prepay all or any part of the
Principal Debt or the Swing Line Principal Debt, from time to time and
at any time, in whole or in part, without premium or penalty; provided
that: (i) such notice must be received by Administrative Agent by 12:00
noon, Dallas, Texas time, one Business Day preceding the date of
prepayment of any Borrowing except with respect to the Swing Line
Principal Debt for which same Business Day notice is sufficient; (ii)
each such partial prepayment must be in a minimum amount of at least
$1,000,000 or a greater integral multiple of $1,000,000 thereof or such
lesser amount as may be outstanding under the Revolver Facility (or
with respect to prepayments of the Swing Line Principal Debt, $100,000
or a greater integral multiple thereof or such lesser amount as may be
outstanding under the Swing Line Subfacility); (iii) any Eurodollar
Rate Borrowing may only be prepaid at the end of an applicable Interest
Period (unless Borrowers pay the amount of any Consequential Loss); and
(iv) Borrowers shall pay any related Consequential Loss within ten (10)
days after demand therefor. Conversions under SECTION 3.11 are not
prepayments. Each notice of prepayment shall specify the prepayment
date, the applicable loan hereunder of Principal Debt being prepaid,
and the Type of Borrowing(s) and amount(s) of such Borrowing(s) to be
prepaid and shall constitute a binding obligation of Borrowers to make
a prepayment on the date stated therein, together with (unless such
prepayment is made with respect to a Base Rate Borrowing or Swing Line
Borrowing) accrued and unpaid interest to the date of such payment on
the aggregate principal amount prepaid. Unless a Default or Potential
Default has occurred and is continuing (or would arise as a result
thereof), any payment or prepayment of the Principal Debt may be
reborrowed by Borrowers, subject to the terms and conditions of the
Loan Documents.
(b) Revolver Facility Mandatory Payments/Reductions. On any
date of determination (i) if the Revolver Commitment Usage exceeds the
Revolver Commitment then in effect, or the Swing Line Principal Debt
exceeds the Swing Line Commitment then in effect, then Borrowers shall
make a mandatory prepayment of the Principal Debt or the Swing Line
Principal Debt, as the case may be, in at least the amount of such
excess, together with (x) all accrued and unpaid interest on the
principal amount so prepaid and (y) any Consequential Loss arising as a
result thereof; provided that, on any such reduction date, if no Swing
Line Principal Debt or Principal Debt is then outstanding, but the LC
Exposure exceeds the Revolver Commitment, then Borrowers shall provide
to Administrative Agent, for the benefit of Lenders, cash collateral in
Dollars in an amount at least equal to 100% of such excess.
(c) Mandatory Prepayments of Interest/Consequential Loss. All
prepayments under SECTION 3.3 shall be made, together with accrued
interest to the date of such prepayment on the principal amount
prepaid, together with any Consequential Loss arising as a result
thereof.
3.4 INTEREST OPTIONS. Except that the Eurodollar Rate may not be
selected when a Default or Potential Default exists and except as otherwise
provided in this Agreement, Borrowings bear interest at a rate per annum equal
to the lesser of (a) as to the respective Type of Borrowing (as designated by
Borrowers in accordance with this Agreement), the Adjusted Eurodollar Rate plus
the Applicable Margin for Eurodollar Rate Borrowings or the Base Rate, and (b)
the Maximum Rate. Each change in the Base Rate or the Maximum Rate, subject to
the terms of this Agreement, will become effective, without notice to any
Borrower or any other Person, upon the effective date of such change.
25 ACS CREDIT AGREEMENT
3.5 QUOTATION OF RATES. It is hereby acknowledged that a Responsible
Officer or other appropriately designated officer of ACS may call Administrative
Agent on or before the date on which a Borrowing Notice is to be delivered by
Borrowers in order to receive an indication of the rates then in effect, but
such indicated rates shall neither be binding upon Administrative Agent or
Lenders nor affect the rate of interest which thereafter is actually in effect
when the Borrowing Notice is given or on the Borrowing Date.
3.6 DEFAULT RATE. At the option of Required Lenders and to the extent
permitted by Law all past-due amounts of the Obligation shall bear interest from
maturity (whether stated or by acceleration) at the Default Rate until paid,
regardless whether such payment is made before or after entry of a judgment;
provided that, the Default Rate shall automatically apply to the extent
specified in and on the terms of SECTIONS 2.2(c), 2.3(a), and 11.3.
3.7 INTEREST RECAPTURE. If the designated rate applicable to any
Borrowing exceeds the Maximum Rate, the rate of interest on such Borrowing shall
be limited to the Maximum Rate, but any subsequent reductions in such designated
rate shall not reduce the rate of interest thereon below the Maximum Rate until
the total amount of interest accrued thereon equals the amount of interest which
would have accrued thereon if such designated rate had at all times been in
effect. In the event that at maturity (stated or by acceleration), or at final
payment of the Principal Debt, the total amount of interest paid or accrued is
less than the amount of interest which would have accrued if such designated
rates had at all times been in effect, then, at such time and to the extent
permitted by Law, Borrowers shall pay an amount equal to the difference between
(a) the lesser of the amount of interest which would have accrued if such
designated rates had at all times been in effect and the amount of interest
which would have accrued if the Maximum Rate had at all times been in effect,
and (b) the amount of interest actually paid or accrued on the Principal Debt.
3.8 INTEREST CALCULATIONS. Interest will be calculated on the basis of
actual number of days (including the first day but excluding the last day)
elapsed but computed as if each calendar year consisted of 360 days in the case
of an Eurodollar Rate Borrowing (unless the calculation would result in an
interest rate greater than the Maximum Rate, in which event interest will be
calculated on the basis of a year of 365 or 366 days, as the case may be) and
365 or 366 days, as the case may be, in the case of a Base Rate Borrowing. All
interest rate determinations and calculations by Administrative Agent are
conclusive and binding absent manifest error.
3.9 MAXIMUM RATE. Regardless of any provision contained in any Loan
Document, neither Administrative Agent nor any Lender shall ever be entitled to
contract for, charge, take, reserve, receive, or apply, as interest on all or
any part of the Obligation, any amount in excess of the Maximum Rate, and, if
Lenders ever do so, then such excess shall be deemed a partial prepayment of
principal and treated hereunder as such and any remaining excess shall be
refunded to Borrowers. In determining if the interest paid or payable exceeds
the Maximum Rate, Borrowers and Lenders shall, to the maximum extent permitted
under applicable Law, (a) treat all Borrowings as but a single extension of
credit (and Lenders and Borrowers agree that such is the case and that provision
herein for multiple Borrowings is for convenience only), (b) characterize any
nonprincipal payment as an expense, fee, or premium rather than as interest, (c)
exclude voluntary prepayments and the effects thereof, and (d) amortize,
prorate, allocate, and spread the total amount of interest throughout the entire
contemplated term of the Obligation. However, if the Obligation is paid and
performed in full prior to the end of the full contemplated term thereof, and if
the interest received for the actual period of existence thereof exceeds the
Maximum Amount, Lenders shall refund such excess, and, in such event, Lenders
shall not, to the extent permitted by Law, be subject to any penalties provided
by any Laws for contracting for, charging, taking, reserving, or receiving
interest in excess of the Maximum Amount. If the Laws of the State of Texas are
applicable for purposes of determining the "Maximum Rate" or the "Maximum
Amount," then those terms mean the "weekly ceiling" from time to time in effect
under Texas Finance Code Section 303.305, as amended. Each
26 ACS CREDIT AGREEMENT
Borrower agrees that Chapter 346 of the Texas Finance Code, as amended (which
regulates certain revolving credit loan accounts and revolving tri-party
accounts), does not apply to the Obligation.
3.10 INTEREST PERIODS. When Borrowers request any Eurodollar Rate
Borrowing, Borrowers may elect the interest period (each an "INTEREST PERIOD")
applicable thereto, which shall be, at Borrowers' option and subject to
availability, one, two, three, or six months; provided, however, that: (a) the
initial Interest Period for a Eurodollar Rate Borrowing shall commence on the
date of such Borrowing (including the date of any conversion thereto), and each
Interest Period occurring thereafter in respect of such Borrowing shall commence
on the day on which the next preceding Interest Period applicable thereto
expires; (b) if any Interest Period for a Eurodollar Rate Borrowing begins on a
day for which there is no numerically corresponding Business Day in the calendar
month at the end of such Interest Period, such Interest Period shall end on the
next Business Day immediately following what otherwise would have been such
numerically corresponding day in the calendar month at the end of such Interest
Period (unless such date would be in a different calendar month from what would
have been the month at the end of such Interest Period, or unless there is no
numerically corresponding day in the calendar month at the end of the Interest
Period; whereupon, such Interest Period shall end on the last Business Day in
the calendar month at the end of such Interest Period); and (c) no Interest
Period may be chosen with respect to any portion of the Principal Debt which
would extend beyond the scheduled repayment date (including any dates on which
mandatory prepayments are required to be made) for such portion of the Principal
Debt.
3.11 CONVERSIONS. Borrowers may (a) convert a Eurodollar Rate Borrowing
on the last day of the applicable Interest Period to a Base Rate Borrowing, (b)
convert a Base Rate Borrowing at any time to a Eurodollar Rate Borrowing, and
(c) elect a new Interest Period (in the case of a Eurodollar Rate Borrowing), by
giving a Conversion Notice of such intent to Administrative Agent no later than
12:00 p.m. Dallas, Texas time on the third Business Day prior to the date of
conversion or the last day of the Interest Period, as the case may be (in the
case of a conversion to a Eurodollar Rate Borrowing or an election of a new
Interest Period), and no later than 12:00 p.m. Dallas, Texas time one Business
Day prior to the last day of the Interest Period (in the case of a conversion to
a Base Rate Borrowing); provided that, the principal amount converted to, or
continued as, a Eurodollar Rate Borrowing shall be in an amount not less than
$5,000,000 or a greater integral multiple of $1,000,000 (or such lesser amount
as may be outstanding). Administrative Agent shall timely notify each Lender
with respect to each Conversion Notice. Absent Borrowers' Conversion Notice or
election of a new Interest Period, a Eurodollar Rate Borrowing shall be deemed
converted to a Base Rate Borrowing effective as of the expiration of the
Interest Period applicable thereto. No Eurodollar Rate Borrowing may be either
made or continued as a Eurodollar Rate Borrowing, and no Base Rate Borrowing may
be converted to a Eurodollar Rate Borrowing, if the interest rate for such
Eurodollar Rate Borrowing would exceed the Maximum Rate. The right to convert
from a Base Rate Borrowing to a Eurodollar Rate Borrowing, or to continue as a
Eurodollar Rate Borrowing shall not be available during the occurrence of a
Default or Potential Default.
3.12 ORDER OF APPLICATION.
(a) No Default. If no Default or Potential Default exists and
if no order of application is otherwise specified in the Loan
Documents, payments and prepayments of the Obligation shall be applied
first to fees, second to accrued interest then due and payable on the
Principal Debt, and then to the remaining Obligation in the order and
manner as Borrowers may direct.
(b) Default. If a Default or Potential Default exists (or if
Borrowers fail to give directions as permitted under SECTION 3.12(a)),
any payment or prepayment (including proceeds from the exercise of any
Rights) shall be applied to the Obligation in the following order: (i)
to the ratable payment of all fees, expenses, and indemnities for which
Agents or Lenders have not been paid or reimbursed in accordance with
the Loan Documents (as used in this
27 ACS CREDIT AGREEMENT
SECTION 3.12(b)(i), a "ratable payment" for any Lender or any Agent
shall be, on any date of determination, that proportion which the
portion of the total fees, expenses, and indemnities owed to such
Lender or such Agent bears to the total aggregate fees and indemnities
owed to all Lenders and Agents on such date of determination); (ii) to
the ratable payment of accrued and unpaid interest on the Principal
Debt (as used in this SECTION 3.12(b)(ii), "ratable payment" means, for
any Lender, on any date of determination, that proportion which the
accrued and unpaid interest on the Principal Debt owed to such Lender
bears to the total accrued and unpaid interest on the Principal Debt
owed to all Lenders); (iii) to the ratable payment of the Swing Line
Principal Debt which is due and payable and which remains unfunded by
any Borrowing; provided that, such payments shall be allocated ratably
among the Swing Line Lender and the Lenders which have funded their
participations in the Swing Line Principal Debt (as used in this
SECTION 3.12(b)(iii), "ratable payment" and "ratably" means for Swing
Line Lender and any Lender, on any date of determination, that
proportion which the Swing Line Principal Debt owed (whether directly
or by participations) to Swing Line Lender or such Lender (as
applicable) bears to the Swing Line Principal Debt owed to the Swing
Line Lender and all Lenders); (iv) to the ratable payment of any
reimbursement obligation with respect to any LC issued pursuant to the
Agreement which is due and payable and which remains unfunded by any
Borrowing; provided that, such payments shall be allocated ratably
among the applicable LC Issuer and the Lenders which have funded their
participations in such LC (as used in this SECTION 3.12(b)(iv),
"ratable payment" and "ratably" means for any LC Issuer and any Lender,
on any date of determination, that proportion which the reimbursement
obligation under such LC owed (whether directly or by participations)
to such LC Issuer or Lender (as applicable) bears to the reimbursement
obligation under such LC owed to the applicable LC Issuer and all
Lenders); (v) to the ratable payment of the remaining Principal Debt
(as used in this SECTION 3.12(b)(v), "ratable payment" means for any
Lender, on any date of determination, that proportion which the
Principal Debt owed to such Lender bears to the Principal Debt owed to
all Lenders); (vi) to provide cash collateral in an amount equal to
100% of the LC Exposure then existing in accordance with SECTION
2.2(g); and (vii) to the payment of the remaining Obligation in the
order and manner Required Lenders deem appropriate.
Subject to the provisions of SECTION 12 and provided that Administrative Agent
shall not in any event be bound to inquire into or to determine the validity,
scope, or priority of any interest or entitlement of any Lender and may suspend
all payments or seek appropriate relief (including, without limitation,
instructions from Required Lenders or an action in the nature of interpleader)
in the event of any doubt or dispute as to any apportionment or distribution
contemplated hereby, Administrative Agent shall promptly distribute such amounts
to each Lender in accordance with the Agreement and the related Loan Documents.
3.13 SHARING OF PAYMENTS, ETC. If any Lender shall obtain any payment
or prepayment with respect to the Obligation (whether voluntary, involuntary, or
otherwise, including, without limitation, as a result of exercising its Rights
under SECTION 3.14) which is in excess of its share of any such payment in
accordance with the relevant Rights of the Lenders under the Loan Documents,
then such Lender shall purchase from the other Lenders such participations as
shall be necessary to cause such purchasing Lender to share the excess payment
with each other Lender in accordance with the relevant Rights under the Loan
Documents. If all or any portion of such excess payment is subsequently
recovered from such purchasing Lender, then the purchase shall be rescinded and
the purchase price restored to the extent of such recovery. Borrowers agree that
any Lender purchasing a participation from another Lender pursuant to this
SECTION 3.13 may, to the fullest extent permitted by Law, exercise all of its
Rights of payment (including the Right of offset) with respect to such
participation as fully as if such Lender were the direct creditor of each
Borrower in the amount of such participation.
28 ACS CREDIT AGREEMENT
3.14 OFFSET. If a Default exists, each Lender shall be entitled to
exercise (for the benefit of all Lenders in accordance with SECTION 3.13) the
Rights of offset and/or banker's Lien against each and every account and other
property, or any interest therein, which any Loan Party may now or hereafter
have with, or which is now or hereafter in the possession of, such Lender to the
extent of the full amount of the Obligation.
3.15 BOOKING BORROWINGS. To the extent permitted by Law, any Lender may
make, carry, or transfer its Borrowings at, to, or for the account of any of its
branch offices or the office of any of its Affiliates; provided that, no
Affiliate shall be entitled to receive any greater payment under SECTION 4 than
the transferor Lender would have been entitled to receive with respect to such
Borrowings.
SECTION 4 CHANGE IN CIRCUMSTANCES.
4.1 INCREASED COST AND REDUCED RETURN.
(a) Changes in Law. If, after the date hereof, the adoption of
any applicable Law or any change in any applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority, or
compliance by any Lender (or its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of any such Governmental
Authority:
(i) shall subject such Lender (or its Applicable
Lending Office) to any Tax or other charge with respect to any
Eurodollar Rate Borrowing, its Notes, or its obligation to
loan Eurodollar Rate Borrowings, or change the basis of
taxation of any amounts payable to such Lender (or its
Applicable Lending Office) under the Loan Documents in respect
of any Eurodollar Rate Borrowings (other than Taxes imposed on
the overall net income of such Lender by the jurisdiction in
which such Lender has its principal office or such Applicable
Lending Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement
(other than the Reserve Requirement utilized in the
determination of the Adjusted Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits with
or other liabilities or commitments of, such Lender (or its
Applicable Lending Office), including the commitment of such
Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or the London interbank market any other
condition affecting the Loan Documents or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, converting into,
continuing, or maintaining any Eurodollar Rate Borrowings or to reduce
any sum received or receivable by such Lender (or its Applicable
Lending Office) under the Loan Documents with respect to any Eurodollar
Rate Borrowing, then Borrowers (jointly and severally) shall pay to
such Lender on demand such amount or amounts as will compensate such
Lender for such increased cost or reduction. If any Lender requests
compensation by Borrowers under this SECTION 4.1(a), Borrowers may, by
notice to such Lender (with a copy to Administrative Agent), suspend
the obligation of such Lender to loan or continue Borrowings of the
Type with respect to which such compensation is requested, or to
convert Borrowings of any other Type into Borrowings of such Type,
until the event or condition giving rise to such request ceases to be
in effect (in which case the provisions of SECTION 4.4 shall be
applicable); provided, that such suspension shall not affect the Right
of such Lender to receive the compensation so requested.
29 ACS CREDIT AGREEMENT
(b) Capital Adequacy. If, after the date hereof, any Lender
shall have determined that the adoption of any applicable Law regarding
capital adequacy or any change therein or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of
any such Governmental Authority has or would have the effect of
reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request,
or directive (taking into consideration its policies with respect to
capital adequacy), then from time to time upon demand Borrowers shall
pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
(c) Changes in Applicable Lending Office. Compensation
Statement. Each Lender shall promptly (and in any event with eighteen
(18) months) notify Borrowers and Administrative Agent of any event of
which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation
will avoid the need for, or reduce the amount of, such compensation and
will not, in the judgment of such Lender, be otherwise disadvantageous
to it. Any Lender claiming compensation under this Section shall
furnish to Borrowers and Administrative Agent a statement setting forth
the additional amount or amounts to be paid to it hereunder which shall
be conclusive in the absence of manifest error. In determining such
amount, such Lender may use any reasonable averaging and attribution
methods. In no event will Borrowers be obligated to compensate any
Lender pursuant to this SECTION 4.1 for any amounts described herein
that accrued more than eighteen (18) months prior to the date the
notice described above is given by the party requesting such
compensation, but the foregoing shall in no way limit the right of such
Lender to request compensation for amounts accrued during such eighteen
(18) month period or any future period.
4.2 LIMITATION ON TYPES OF LOANS. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Borrowing:
(a) Inability to Determine Eurodollar Rate. Administrative
Agent determines (which determination shall be conclusive) that by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period; or
(b) Cost of Funds. Required Lenders determine (which
determination shall be conclusive) and notify Administrative Agent that
the Adjusted Eurodollar Rate will not adequately and fairly reflect the
cost to the Lenders of funding Eurodollar Rate Borrowings for such
Interest Period;
then Administrative Agent shall give Borrowers prompt notice thereof specifying
the relevant amounts or periods, and so long as such condition remains in
effect, the Lenders shall be under no obligation to fund additional Eurodollar
Rate Borrowings, continue Eurodollar Rate Borrowings, or to convert Base Rate
Borrowings into Eurodollar Rate Borrowings, and Borrowers shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Eurodollar
Rate Borrowings, either prepay such Borrowings or convert such Borrowings into
Base Rate Borrowings in accordance with the terms of this Agreement.
4.3 ILLEGALITY. Notwithstanding any other provision of the Loan
Documents, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to make, maintain, or fund Eurodollar Rate Borrowings
hereunder, then such Lender shall promptly notify Borrowers thereof and
30 ACS CREDIT AGREEMENT
such Lender's obligation to make or continue Eurodollar Rate Borrowings and to
convert other Base Rate Borrowings into Eurodollar Rate Borrowings shall be
suspended until such time as such Lender may again make, maintain, and fund
Eurodollar Rate Borrowings (in which case the provisions of SECTION 4.4 shall be
applicable).
4.4 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
fund Eurodollar Rate Borrowings or to continue, or to convert Base Rate
Borrowings into Eurodollar Rate Borrowings, shall be suspended pursuant to
SECTIONS 4.1, 4.2, or 4.3 hereof, such Lender's Eurodollar Rate Borrowings shall
be automatically converted into Base Rate Borrowings on the last day(s) of the
then current Interest Period(s) for Eurodollar Rate Borrowings (or, in the case
of a conversion required by SECTION 4.3 hereof, on such earlier date as such
Lender may specify to Borrowers with a copy to Administrative Agent) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in SECTIONS 4.1, 4.2, or 4.3 hereof that gave rise to such conversion
no longer exist:
(a) to the extent that such Lender's Eurodollar Rate
Borrowings have been so converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's Eurodollar
Rate Borrowings shall be applied instead to its Base Rate Borrowings;
and
(b) all Borrowings that would otherwise be made or continued
by such Lender as Eurodollar Rate Borrowings shall be made or continued
instead as Base Rate Borrowings, and all Borrowings of such Lender that
would otherwise be converted into Eurodollar Rate Borrowings shall be
converted instead into (or shall remain as) Base Rate Borrowings.
If such Lender gives notice to Borrowers (with a copy to Administrative Agent)
that the circumstances specified in SECTIONS 4.1, 4.2, or 4.3 hereof that gave
rise to the conversion of such Lender's Eurodollar Rate Borrowings pursuant to
this SECTION 4.4 no longer exist (which such Lender agrees to do promptly upon
such circumstances ceasing to exist) at a time when Eurodollar Rate Borrowings
made by other Lenders are outstanding, such Lender's Base Rate Borrowings shall
be automatically converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurodollar Rate Borrowings, to the extent
necessary so that, after giving effect thereto, all Eurodollar Rate Borrowings
held by the Lenders and by such Lender are held pro rata (as to principal
amounts, Types, and Interest Periods) in accordance with their respective
Committed Sums.
4.5 COMPENSATION. Upon the request of any Lender, Borrowers shall pay
to such Lender such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost, or expense
(excluding loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or conversion of a Eurodollar
Rate Borrowing for any reason (including, without limitation, the
acceleration of the loan pursuant to SECTION 11.1) on a date other than
the last day of the Interest Period for such Borrowing; or
(b) any failure by Borrowers for any reason (including,
without limitation, the failure of any condition precedent specified in
SECTION 7.2 to be satisfied) to borrow, convert, continue, or prepay a
Eurodollar Rate Borrowing on the date for such borrowing, conversion,
continuation, or prepayment specified in the relevant Borrowing Notice,
prepayment, continuation, or conversion under this Agreement.
4.6 TAXES.
(a) General. Any and all payments by Borrowers to or for the
account of any LC Issuer, Lender, or Administrative Agent hereunder or
under any other Loan Document shall be made free and clear of and
without deduction for any and all present or future Taxes, excluding,
31 ACS CREDIT AGREEMENT
in the case of each LC Issuer, Lender, and Administrative Agent, Taxes
imposed on its income and franchise Taxes imposed on it by the
jurisdiction under the laws of which such LC Issuer, Lender (or its
Applicable Lending Office), or Administrative Agent (as the case may
be) is organized, or any political subdivision thereof. If Borrowers
shall be required by law to deduct any Taxes from or in respect of any
sum payable under any Loan Document to any LC Issuer, Lender, or
Administrative Agent, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this SECTION
4.6) such LC Issuer, Lender, or Administrative Agent receives an amount
equal to the sum it would have received had no such deductions been
made, (ii) Borrowers shall make such deductions, (iii) Borrowers shall
pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law, and (iv) Borrowers
shall furnish to Administrative Agent, at its address listed in
SCHEDULE 2.1, the original or a certified copy of a receipt evidencing
payment thereof.
(b) Stamp and Documentary Taxes. In addition, Borrowers
(jointly and severally) agree to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any
Loan Document or from the execution or delivery of, or otherwise with
respect to, any Loan Document (hereinafter referred to as "OTHER
TAXES").
(c) Indemnification for Taxes. Borrowers (jointly and
severally) agree to indemnify each LC Issuer, Lender, and
Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this SECTION 4.6)
paid by such LC Issuer, Lender, or Administrative Agent (as the case
may be) and any liability (including penalties, interest, and expenses)
arising therefrom or with respect thereto.
(d) Withholding Tax Forms. Each Lender organized under the
Laws of a jurisdiction outside the United States, on or prior to the
Closing Date in the case of each Lender listed on the signature pages
hereof and on or prior to the date on which it becomes a Lender in the
case of each other Lender, and from time to time thereafter if
requested in writing by Borrowers or Administrative Agent (but only so
long as such Lender remains lawfully able to do so), shall provide
Borrowers and Administrative Agent with (i) two duly completed copies
of Internal Revenue Service Form W-BEN, W-8ECI, W-8IMY, W-9, or other
applicable form, as the case may be, certifying in each case that such
Lender is entitled to benefits under an income tax treaty to which the
United States is a party which reduces the rate of withholding tax on
payments of interest or certifying that the income receivable pursuant
to this Agreement is effectively connected with the conduct of a trade
or business in the United States, or certifying that such Lender is
entitled to an exemption from or a reduced rate of tax on payment
pursuant to the "portfolio interest" exception under section 871(h) or
881(c) of the Code, (ii) if applicable, a statement indicating that
such Holder is entitled to the "portfolio interest" exception under
Section 871(h) or 881(c)(3) of the Code, and (iii) any other
governmental forms or certificates which are necessary or required
under an applicable tax treaty or otherwise by Law to reduce or
eliminate withholding tax, which has been reasonably requested by
Borrowers or Administrative Agent. If an event (including without
limitation any change in treaty, Law, or regulation) occurs after the
date hereof which renders all such forms inapplicable or which would
prevent any Lender from duly completing and delivering any such form
with respect to it and such Lender advises Borrowers and Administrative
Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax, such
Lender shall not be required to deliver such forms.
32 ACS CREDIT AGREEMENT
(e) Failure to Provide Withholding Forms; Changes in Tax Laws.
For any period with respect to which a Lender has failed to provide
Borrowers and Administrative Agent with the appropriate form pursuant
to SECTION 4.6(d) (unless such failure is due to a change in Law
occurring subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled to
indemnification under SECTION 4.6(a) or 4.6(b) with respect to Taxes
imposed by the United States; provided, however, that should a Lender,
which is otherwise exempt from or subject to a reduced rate of
withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, Borrowers shall take such steps as
such Lender shall reasonably request to assist such Lender to recover
such Taxes.
(f) Change in Applicable Lending Office. If Borrowers are
required to pay additional amounts to or for the account of any Lender
pursuant to this SECTION 4.6, then such Lender will agree to use
reasonable efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which
may thereafter accrue if such change, in the judgment of such Lender,
is not otherwise disadvantageous to such Lender.
(g) Tax Payment Receipt. Within thirty (30) days after the
date of any payment of Taxes, Borrowers shall furnish to Administrative
Agent the original or a certified copy of a receipt evidencing such
payment.
(h) Survival. Without prejudice to the survival of any other
agreement of Borrowers hereunder, the agreements and obligations of
Borrowers contained in this SECTION 4.6 shall survive for eighteen (18)
months after termination of the Revolver Commitment and the payment in
full of the Obligation.
4.7 REMOVAL OF LENDERS. If (a) a Lender or a Participant requests
compensation pursuant to SECTIONS 4.1 or 4.6 and the Required Lenders are not
also doing the same, or (b) the obligation of a Lender to make Eurodollar Rate
Borrowings or to continue, or to convert Borrowings into Eurodollar Rate
Borrowings shall be suspended pursuant to SECTION 4.1 or SECTION 4.3, but the
obligation of the Required Lenders shall not have been suspended under such
Sections, Borrowers may either (i) demand that such Lender or Participant (the
"AFFECTED LENDER"), and upon such demand the Affected Lender shall promptly,
assign its Revolver Commitment and all of its Principal Debt to an Eligible
Assignee subject to and in accordance with the provisions of SECTION 13.12(b)
for a purchase price equal to the aggregate principal balance of Principal Debt
then owing to the Affected Lender (together with any participation held by the
Affected Lender in any Swing Line Principal Debt pursuant to SECTION 2.3(b) or
in any LC and related reimbursement obligations under the LC Subfacility
pursuant to SECTION 2.2(b)) plus any accrued but unpaid interest thereon,
accrued but unpaid fees owing to the Affected Lender, and any amounts owing the
Affected Lender under SECTION 4, or (ii) pay to the Affected Lender the
aggregate principal balance of Principal Debt (together with any participation
held by the Affected Lender in any Swing Line Loan pursuant to SECTION 2.3(b) or
in any LC and related reimbursement obligations under the LC Subfacility
pursuant to SECTION 2.2(b)) then owing to the Affected Lender plus any accrued
but unpaid interest thereon, accrued but unpaid fees owing to the Affected
Lender, and any amounts owing the Affected Lender under SECTION 4, whereupon the
Affected Lender shall no longer be a party hereto or have any rights or
obligations hereunder or under any of the other Loan Documents, subject to the
survival of certain provisions as set forth in SECTION 13.13. Each of
Administrative Agent and the Affected Lender shall reasonably cooperate in
effectuating the replacement of an Affected Lender under this Section, but at no
time shall Administrative Agent, the Affected Lender, or any other Lender be
obligated in any way whatsoever to initiate any such replacement or to assist in
finding an Eligible Assignee. The exercise by Borrowers of the rights under this
Section shall be at Borrowers' sole cost and expenses and at no cost or expense
to Administrative Agent, the Affected Lender, or any of the other Lenders and
shall not be available if any Default or Potential Default has occurred and is
continuing. The
33 ACS CREDIT AGREEMENT
terms of this Section shall not in any way limit Borrowers' obligation to pay to
any Affected Lender compensation owing to such Affected Lender pursuant to
SECTION 4.
SECTION 5 FEES.
5.1 TREATMENT OF FEES. Except as otherwise provided by Law, the fees
described in this SECTION 5: (a) do not constitute compensation for the use,
detention, or forbearance of money, (b) are in addition to, and not in lieu of,
interest and expenses otherwise described in the Loan Documents, (c) shall be
payable in accordance with SECTION 3.1(c), (d) shall be non-refundable, (e)
shall, to the fullest extent permitted by Law, bear interest, if not paid when
due, at the Default Rate, and (f) shall be calculated on the basis of actual
number of days (including the first day but excluding the last day) elapsed, but
computed as if each calendar year consisted of 360 days, unless such computation
would result in interest being computed in excess of the Maximum Rate in which
event such computation shall be made on the basis of a year of 365 or 366 days,
as the case may be.
5.2 FEES OF ADMINISTRATIVE AGENT AND ARRANGER. Borrowers shall pay to
Administrative Agent and Arranger, as the case may be, solely for their
respective accounts, the fees described in that certain separate letter
agreement dated as of August 7, 2002, between ACS, Administrative Agent, and
Arranger.
5.3 FACILITY FEE. Borrowers shall pay to the Administrative Agent for
the account of each Lender, in accordance with its Commitment Percentage, a
facility fee (the "FACILITY FEE") equal to the Applicable Margin for Facility
Fee (applied on a per diem basis) times the actual daily amount of the Revolver
Commitment, regardless of usage (or if the Revolver Commitment has been
terminated, such Lender's Pro Rata Part calculated on the Principal Debt). The
Facility Fee shall accrue at all times from the Closing Date until the date the
Principal Debt has been paid in full and the Revolver Commitment has been
terminated and shall be due and payable on the 10th Business Day of each
January, April, July, and October, commencing with the first such date to occur
after the Closing Date, and ending on the date both the Principal Debt has been
paid in full and the Revolver Commitment has been terminated for the amount
accrued during the previous fiscal quarterly period. The Facility Fee shall be
calculated for the amount accrued during the previous fiscal quarterly period,
in accordance with SECTION 5.1(f), and if there is any change in the Applicable
Margin during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Margin for Facility Fees (on a per diem basis)
separately for each period during such quarter that such Applicable Margin was
in effect. The Facility Fee shall accrue at all times, including at any time
during which one or more of the conditions in SECTION 7.2 is not met.
5.4 UTILIZATION FEE. Borrowers shall pay to the Administrative Agent
for the account of each Lender, in accordance with its Commitment Percentage, a
utilization fee (the "UTILIZATION FEE") equal to the Applicable Margin for
Utilization Fee (applied on a per diem basis) times the actual daily aggregate
Revolver Commitment Usage; provided that (i) on and after March __, 2003, but
prior to the Termination Date, the Utilization Fee shall be payable only in
respect of each day that such aggregate Revolver Commitment Usage exceeds 50% of
the Revolver Commitment then in effect, and (ii) on and after the Termination
Date, the Utilization Fee shall be payable only in respect of each day that such
aggregate Revolver Commitment Usage exceeds 50% of the Revolver Commitment that
was in existence on the Business Day immediately prior to the termination of the
Revolver Commitment. The Utilization Fee shall be due and payable on the 10th
Business Day of each January, April, July and October, commencing with the first
such date to occur after the Closing Date, and ending on the date both the
Principal Debt has been paid in full and the Revolver Commitment has been
terminated for the amount accrued during the previous fiscal quarterly period.
The Utilization Fee shall be calculated for the amount accrued during the
previous fiscal quarterly period in accordance with SECTION 5.1(f), and if there
is any change in the Applicable Margin during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Margin for Utilization
Fee (on a per diem basis) separately for each period during such quarter
34 ACS CREDIT AGREEMENT
that such Applicable Margin was in effect. The Utilization Fee shall accrue at
all times, including at any time during which one or more of the conditions in
SECTION 7.2 is not met.
5.5 LC FEES. As an inducement for the issuance (including, without
limitation, any extension) of each LC, Borrowers (jointly and severally) agree
to pay:
(a) To Administrative Agent, for the account of each Lender,
according to each Lender's Commitment Percentage on the day the fee is
payable, a LC issuance fee payable for the amount accrued during the
previous fiscal quarterly period, on the 10th Business Day of each
January, April, July, and October, and on the expiry date of the LC for
the amount accrued during the previous fiscal quarterly period. The
issuance fee for each LC or any extension thereof shall be in an amount
equal to the product of (a) the Applicable Margin for Eurodollar Rate
Borrowings in effect on the date of payment of such fee (calculated on
a per annum basis) multiplied by (b) the average Dollar Equivalent of
the stated amount of such LC during the period of determination.
(b) To the applicable LC Issuer, solely for its individual
account, and in addition to such LC Issuer's ratable portion of the LC
issuance fees payable pursuant to SECTION 5.5(a), a fronting fee of
0.125% of the Dollar Equivalent of the face amount of such LC (or
extensions thereof) payable on the date of issuance of any LC by such
LC Issuer (or any extension thereof). In addition, Borrowers shall pay
to the applicable LC Issuer, solely for its individual account,
standard administrative charges for LC amendments.
SECTION 6. SECURITY; GUARANTIES.
6.1 BORROWERS, GUARANTIES, AND FOREIGN STOCK PLEDGES. Borrowers agree
that, at all times (subject to the grace periods set forth in the last sentence
of this SECTION 6.1), the sum of: (a) the EBITDA of ACS, plus (b) the EBITDA of
all then-existing Domestic Subsidiary Obligors, plus (c) the EBITDA of all
Pledged Foreign Subsidiaries, plus (d) at the option of Borrowers as reflected
on the most recent certificate demonstrating compliance with the Coverage
Requirement, the EBITDA of any Included Foreign Subsidiaries, shall equal or
exceed 65% of the consolidated EBITDA of the Companies (such requirement
referred to herein as the "COVERAGE REQUIREMENT"). ACS shall, within the time
periods required below, add a Domestic Subsidiary Obligor as a Guarantor or
Borrower or deliver a Foreign Stock Pledge from a Domestic Subsidiary in order
to satisfy the Coverage Requirement by complying with the conditions precedent
set forth in SECTION 7.3. For purposes of the Coverage Requirement calculation,
EBITDA shall be calculated (i) for the applicable Company on an unconsolidated
basis without giving effect to the EBITDA of any Subsidiaries of such Company
and (ii) based on the most recently ended Rolling Period for which Financial
Statements have been delivered. If any Compliance Certificate delivered pursuant
to SECTION 9.3 or any other certificate requested by Administrative Agent with
respect to compliance with this SECTION 6.1 indicates that the Coverage
Requirement is not satisfied, then Borrowers shall have up to (y) 20 days from
the date of delivery of such Compliance Certificate or other certificate to add
additional Borrowers or Guarantors or (z) 45 days to deliver additional Foreign
Stock Pledges, such that after giving effect to such additional Borrowers,
Guarantors, and Foreign Stock Pledges, the Coverage Requirement is satisfied.
6.2 RELEASE OF BORROWERS, GUARANTIES, AND COLLATERAL. Upon delivery of
a proforma Compliance Certificate demonstrating and certifying to Administrative
Agent that no Default or Potential Default exists or will exist immediately
after (i) subtracting the EBITDA of any Borrower or Guarantor that is to be
released, or any Pledged Foreign Subsidiary whose Stock is to be released, from
the calculation of the Coverage Requirement and (ii) adding the EBITDA of any
additional Borrowers or Guarantors being provided concurrently therewith, plus
the EBITDA of any Foreign Subsidiaries whose Stock is pledged (and, at the
option of the Borrowers, any Included Foreign Subsidiaries) concurrently
35 ACS CREDIT AGREEMENT
therewith, Administrative Agent shall (and is hereby irrevocably authorized by
Lenders to) execute a release of such Borrower from its obligations as a
Borrower under the Loan Documents, including its obligation to pay the
Obligation, such Guarantor from its Guaranty, and/or the Liens granted to
Administrative Agent for the benefit of Lenders in the Stock of such Foreign
Subsidiary (along with the termination of the related Foreign Stock Pledge)
substantially in the forms of EXHIBITS X-0, X-0, xxx/xx X-0, as applicable;
provided that nothing herein shall permit Administrative Agent to release ACS as
a Borrower without the consent of all Lenders; and provided further that
Administrative Agent shall not be required to execute any such document other
than such a release of such Borrowers, Liens, and Guaranties in substantially
the forms attached hereto as EXHIBITS G-1, G-2, and/or G-3, as applicable.
6.3 CONTROL; LIMITATION OF RIGHTS. Notwithstanding anything herein or
in any other Loan Document to the contrary, (a) the transactions contemplated
hereby (i) do not and will not constitute, create, or have the effect of
constituting or creating, directly or indirectly, actual or practical ownership
of any Loan Party by Agents or Lenders, or control, affirmative or negative,
direct or indirect, by Agents or Lenders over the management or any other aspect
of the operation of any Loan Party, which ownership or control remains
exclusively and at all times in the Loan Parties.
SECTION 7 CONDITIONS PRECEDENT.
7.1 CONDITIONS PRECEDENT TO CLOSING. This Agreement shall not become
effective, and Lenders shall not be obligated to make their initial extension of
credit, unless Administrative Agent has received all of the agreements,
documents, instruments, and other items described on SCHEDULE 7.1.
Notwithstanding anything to the contrary contained herein, the Agreement shall
be deemed effective upon the making of the initial extension of credit
hereunder.
7.2 CONDITIONS PRECEDENT TO EACH BORROWING. Lenders will not be
obligated to fund (as opposed to continue or convert) any Borrowing, and no LC
Issuer will be obligated to issue any LC, as the case may be, unless on the date
of such Borrowing or issuance (and after giving effect thereto), as the case may
be: (a) Administrative Agent (and LC Issuer, if applicable) shall have timely
received therefor a Borrowing Notice or a LC Request (together with the
applicable LC Agreement), as the case may be; (b) Administrative Agent and the
applicable LC Issuer shall have received, as applicable, the LC fees provided
for in SECTION 5.5 hereof; (c) all of the representations and warranties of any
Company set forth in the Loan Documents are true and correct in all material
respects (except to the extent that (i) the representations and warranties speak
to a specific date or (ii) the facts on which such representations and
warranties are based have been changed by transactions expressly contemplated or
permitted by the Loan Documents); (d) no Default or Potential Default shall have
occurred and be continuing; and (e) the funding of such Borrowings and issuance
of such LC, as the case may be, is permitted by Law. Each Borrowing Notice and
LC Request delivered to Administrative Agent (or LC Issuers, as applicable)
shall constitute the representation and warranty by Borrowers to Administrative
Agent (or LC Issuers, as applicable) that, as of the Borrowing Date or the date
of issuance of the requested LC, as the case may be, the statements above are
true and correct in all respects. Each condition precedent in this Agreement is
material to the transactions contemplated in this Agreement, and time is of the
essence in respect of each thereof. Subject to the prior written approval of
Required Lenders (or as otherwise set forth in SECTIONS 2.2(c) or 2.3(b)),
Lenders may fund any Borrowing, and LC Issuers may issue any LC, without all
conditions being satisfied, but, to the extent permitted by Law, the same shall
not be deemed to be a waiver of the requirement that each such condition
precedent be satisfied as a prerequisite for any subsequent funding or issuance,
unless Required Lenders specifically waive each such item in writing.
7.3 CONDITIONS PRECEDENT TO ADDITIONAL BORROWERS, GUARANTORS, OR
FOREIGN STOCK PLEDGES. No Person shall become a Borrower or Guarantor, and no
Pledgor shall deliver a Foreign Stock Pledge until such Person shall have
satisfied the conditions and delivered, or caused to be delivered, to
Administrative Agent, all documents and certificates set forth on SCHEDULE 7.3.
All documentation
36 ACS CREDIT AGREEMENT
delivered and satisfaction of conditions pursuant to the requirements of SECTION
7.3 must be reasonably satisfactory to Administrative Agent; provided, however
that upon the delivery to Administrative Agent of all documents and certificates
set forth on SCHEDULE 7.3 with respect to each such Person, the Borrowers shall
be deemed to have complied with SECTION 6.2; and provided further that Borrowers
agree to promptly address any reasonable requests made by Administrative Agent
or Required Lenders concerning any such documents and certificates.
SECTION 8 REPRESENTATIONS AND WARRANTIES. Each Company represents and warrants
to Administrative Agent and Lenders as follows:
8.1 PURPOSE OF CREDIT FACILITY. Borrowers will use (or will advance
such proceeds to their Subsidiaries to so use) all proceeds of Borrowings for
one or more of the following: (a) to repay the Debt existing under the Existing
Credit Agreements and pay the related costs and expenses; (b) to finance
Acquisitions; (c) for working capital of the Companies; and (d) for general
corporate purposes; provided that, on the Closing Date the proceeds of
Borrowings will not be used to back-stop commercial paper. No Company is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any "margin stock" within the
meaning of Regulation U. No part of the proceeds of any Borrowing will be used,
directly or indirectly, for a purpose which violates any Law, including, without
limitation, the provisions of Regulation T, U, or X (as enacted by the Board of
Governors of the Federal Reserve System, as amended).
8.2 EXISTENCE, GOOD STANDING, AUTHORITY, AND AUTHORIZATIONS. Each
Company is duly organized, validly existing, and in good standing under the Laws
of its jurisdiction of organization. Except where not a Material Adverse Event,
each Company is duly qualified to transact business and is in good standing in
each jurisdiction where the nature and extent of its business and properties
require the same. Except where not a Material Adverse Event, each Company
possesses all the Authorizations necessary or required in the conduct of its
respective business(es), and the same are valid, binding, enforceable, and
subsisting without any defaults thereunder or enforceable adverse limitations
thereon and are not subject to any proceedings or claims opposing the issuance,
development, or use thereof or contesting the validity thereof. No Authorization
which has not been obtained is required by reason of or in connection with the
execution and performance of the Loan Documents by the Loan Parties.
8.3 SUBSIDIARIES; CAPITAL STOCK. All of the outstanding shares of Stock
of each Company are duly authorized, validly issued, fully paid, and
nonassessable and are owned free and clear of any Liens, restrictions, claims,
or Rights of another Person, other than Permitted Liens, and none of such shares
owned by any Company which is subject to a Foreign Stock Pledge is subject to
any restriction on transfer thereof except for restrictions imposed by
applicable securities Laws and general corporate Laws.
8.4 AUTHORIZATION AND CONTRAVENTION. The execution and delivery by each
Loan Party of each Loan Document to which it is a party and the performance by
such Loan Party of its obligations thereunder (a) are within the organizational
power of such Loan Party; (b) will have been duly authorized by all necessary
organizational action on the part of such Loan Party when such Loan Document is
executed and delivered, (c) require no action by or in respect of, or filing
with, any Governmental Authority, which action or filing has not been taken or
made on or prior to the Closing Date (or if later, the date of execution and
delivery of such Loan Document), (d) will not violate any provision of the
Constituent Documents of such Loan Party, (e) except where not a Material
Adverse Event, will not violate any provision of Law applicable to it, (f)
except where not a Material Adverse Event, will not violate any Material
Agreements to which it is a party, and (g) will not result in the creation or
imposition of any Lien on any asset of any Loan Party, other than Permitted
Liens.
8.5 BINDING EFFECT. Upon execution and delivery by all parties thereto,
each Loan Document will constitute a legal, valid, and binding obligation of
each Loan Party party thereto,
37 ACS CREDIT AGREEMENT
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable Debtor Relief Laws and general
principles of equity.
8.6 FINANCIAL STATEMENTS. The Current Financials were prepared in
accordance with GAAP and present fairly, in all material respects, the
consolidated financial condition, results of operations, and cash flows of the
Companies as of, and for the portion of the fiscal year ending on, the date or
dates thereof (subject only to normal year-end audit adjustments for interim
statements). There were no material liabilities, direct or indirect, fixed or
contingent, of the Companies as of the date or dates of the Current Financials
which are required under GAAP to be reflected therein or in the notes thereto,
and are not so reflected. Except for transactions directly related to,
specifically contemplated by, or expressly permitted by, the Loan Documents, and
except where not a Material Adverse Event, (a) there have been no changes in the
consolidated financial condition of the Companies from that shown in the Current
Financials after the date of such Current Financials, and (b) no Company has
incurred any liability (including, without limitation, any liability under any
Environmental Law), direct or indirect, fixed or contingent, after such date.
8.7 LITIGATION, CLAIMS, INVESTIGATIONS. Except as disclosed on SCHEDULE
8.7 and where not a Material Adverse Event, no Company is subject to, or aware
of the threat of, any Litigation which is reasonably likely to be determined
adversely to any Company. Except where not a Material Adverse Event, there are
no formal complaints, suits, claims, investigations, or proceedings initiated at
or by any Governmental Authority pending or (to the knowledge of ACS) threatened
by or against any Company, nor any judgments, decrees, or orders of any
Governmental Authority outstanding against any Loan Party or any Subsidiary
thereof.
8.8 TAXES. All Tax returns of each Company required to be filed have
been filed (or extensions have been granted) prior to delinquency, except for
any such returns for which the failure to so file is not a Material Adverse
Event, and all Taxes imposed upon each Company which are due and payable have
been paid prior to delinquency, other than Taxes for which the criteria for
Permitted Liens (as specified in SECTION 9.13(b)(VI)) have been satisfied or for
which nonpayment thereof is not a Material Adverse Event.
8.9 ENVIRONMENTAL MATTERS. No Company (a) knows of any environmental
condition or circumstance, such as the presence or Release of any Hazardous
Substance, on any property presently or previously owned by any Company that is
a Material Adverse Event, (b) knows of any violation by any Company of any
Environmental Law, except for such violations that are not a Material Adverse
Event, or (c) knows that any Company is under any obligation to remedy any
violation of any Environmental Law, except for such obligations that are not a
Material Adverse Event; provided, however, that except where not a Material
Adverse Event, each Company (x) to the best of its knowledge, has in full force
and effect all Environmental Permits, licenses, and approvals required to
conduct its operations and is operating in substantial compliance thereunder,
and (y) has taken prudent steps to determine that its properties and operations
are not in violation of any Environmental Law.
8.10 EMPLOYEE BENEFIT PLANS. (a) No Employee Plan has incurred an
"accumulated funding deficiency" (as defined in Section 302 of ERISA and Section
412 of the Code) which is a Material Adverse Event, (b) no Company or ERISA
Affiliate thereof has incurred liability to the PBGC or with respect to an
Employee Plan, which liability is currently due and remains unpaid under Title
IV of ERISA and which is a Material Adverse Event, (c) each Employee Plan
subject to ERISA and the Code complies in all respects, both in form and
operation, with ERISA and the Code, except for such non-compliance that is not a
Material Adverse Event, (d) no ERISA Event has occurred or is reasonably
expected to occur with respect to any Employee Plan or Multiemployer Plan which
is a Material Adverse Event, (e) the present value of all accrued benefits under
each Employee Plan (based on actuarial assumptions used for funding purposes in
the most recent actuarial valuation prepared by the Employee Plan's actuary with
38 ACS CREDIT AGREEMENT
respect to such Employee Plan) did not, as of the last annual actuarial
valuation date for such Employee Plan, exceed the then-current value of the
assets of such Employee Plan except for such an excess that is not a Material
Adverse Event, and (f) the present value of accrued benefits under each Employee
Plan (based on PBGC actuarial assumptions used for plan termination), does not
exceed the value of the assets of such Employee Plan by more than $25,000,000.
8.11 PROPERTIES; LIENS. Except where not a Material Adverse Event, each
Company has good and marketable title to all its property reflected on the
Current Financials, except as otherwise permitted by the Loan Documents. Except
for Permitted Liens, there is no Lien on any property of any Company.
8.12 GOVERNMENT REGULATIONS. No Company is subject to regulation under
the Investment Company Act of 1940, as amended, the Public Utility Holding
Company Act of 1935, as amended, or any other Law (other than Regulations T, U,
and X of the Board of Governors of the Federal Reserve System) which regulates
the incurrence of Debt.
8.13 INTELLECTUAL PROPERTY. Except where not a Material Adverse Event,
each Company owns or has sufficient and legally enforceable Rights to use all
material licenses, patents, patent applications, copyrights, service marks,
trademarks, trademark applications, and trade names necessary to continue to
conduct its businesses as heretofore conducted by it, now conducted by it, and
now proposed to be conducted by it. Each Company is conducting its business
without infringement or claim of infringement of any license, patent, copyright,
service xxxx, trademark, trade name, trade secret, or other intellectual
property right of others, other than any such infringements or claims which, if
successfully asserted against or determined adversely to any Company, is not a
Material Adverse Event. No infringement or claim of infringement by others of
any material license, patent, copyright, service xxxx, trademark, trade name,
trade secret, or other intellectual property of any Company exists, except where
such Company is actively prosecuting to cease such infringement or such
infringement (if it continued unabated) is not a Material Adverse Event.
8.14 COMPLIANCE WITH LAWS. No Company is in violation of any Laws
(including, without limitation, Environmental Laws) other than such violations
which are not a Material Adverse Event. No Company has received notice alleging
any noncompliance with any Laws, except for such noncompliance which no longer
exists, or which is not a Material Adverse Event.
8.15 REGULATION U. "Margin Stock" (as defined in Regulation U)
constitutes less than 25% of those assets of the Companies, which are subject to
any limitation on sale, pledge, or other restrictions hereunder.
8.16 FULL DISCLOSURE. No representation or warranty of any Loan Party
contained in this Agreement (including any Schedule furnished in connection
herewith) contains any untrue statement of a material fact. No other document,
certificate, or written statement furnished to Administrative Agent or any
Lender by or on behalf of any Loan Party for use in connection with the
transactions contemplated in this Agreement, taken as a whole with other
documents, certificates, or written statements furnished contemporaneously
therewith, contains any untrue statement of fact or omits to state a material
fact (known to such Loan Party in the case of any documents not furnished by it)
necessary in order to make the statements contained therein not misleading in
light of the circumstances under which the same were made.
8.17 NO DEFAULT. No Default or Potential Default exists or will arise
as a result of the execution of the Loan Documents or of any Borrowing
hereunder.
8.18 CONTINGENT "EARN-OUT" PAYMENTS. SCHEDULE 8.18 (as supplemented and
modified in writing from time to time to reflect any changes to such Schedule as
a result of transactions permitted by
39 ACS CREDIT AGREEMENT
the Loan Documents) describes all material contractual agreements entered into
by any Company to make contingent ("earn-out") payments based on the financial
performance of any Company or its Subsidiaries. For purposes of this SECTION
8.18, such transactions are "material" if they require any Company to pay over
the course of such transactions, more than $25,000,000 with respect to any
individual transaction.
SECTION 9 COVENANTS. Each Loan Party covenants and agrees (and agrees to cause
its Subsidiaries and, with respect to SECTION 9.10, its ERISA Affiliates) to
perform, observe, and comply with each of the following covenants applicable to
such Person, from the Closing Date and so long thereafter as Lenders are
committed to fund Borrowings and any LC Issuer is committed to issue LCs under
this Agreement and thereafter until the payment in full of the Principal Debt
(and termination of outstanding LCs, if any) and payment in full of any other
Obligation then due and owing, unless Borrowers receive a prior written consent
to the contrary by Administrative Agent as authorized by Required Lenders:
9.1 USE OF PROCEEDS. Borrowers shall use (and shall cause each other
Company to use) the proceeds of Borrowings only for the purposes represented
herein.
9.2 BOOKS AND RECORDS. The Companies shall maintain books, records, and
accounts necessary to prepare financial statements in accordance with GAAP.
9.3 ITEMS TO BE FURNISHED. ACS shall cause the following to be
furnished to Administrative Agent for delivery to Lenders:
(a) Promptly after preparation, and no later than 90 days
after the last day of each fiscal year of ACS, Financial Statements
showing the consolidated financial condition and results of operations
calculated for the Companies, as of, and for the year ended on, such
day, accompanied by:
(i) the unqualified opinion of a firm of
nationally-recognized independent certified public
accountants, based on an audit using generally accepted
auditing standards, that such Financial Statements were
prepared in accordance with GAAP and present fairly the
consolidated financial condition and results of operations of
the Companies; and
(ii) a Compliance Certificate.
(b) Promptly after preparation, and no later than 45 days
after the last day of each of the first three fiscal quarters of ACS
each year, Financial Statements showing the consolidated financial
condition and results of operations calculated for the Companies for
such fiscal quarter and for the period from the beginning of the
then-current fiscal year to, such last day, accompanied by a Compliance
Certificate.
(c) Notice, promptly after any Company knows or has reason to
know of (i) the existence and status of any Litigation, any order or
judgment for the payment of money, or any warrant of attachment,
sequestration, or similar proceeding against the assets of any Company
which is a Material Adverse Event, (ii) any matter that could result in
a Material Adverse Event, (iii) a Default or Potential Default
specifying the nature thereof and what action any Company has taken, is
taking, or proposes to take with respect thereto, (iv) any federal,
state, or local Law limiting or controlling the operations of any
Company which has been issued or adopted hereafter and which is a
Material Adverse Event, (v) the receipt by any Company of notice of any
violation or alleged violation of any Environmental Law or
Environmental Permit or any Environmental Liability or potential
Environmental Liability, which violation or liability or alleged
violation or
40 ACS CREDIT AGREEMENT
liability is a Material Adverse Event, (vi) any public announcement by
Xxxxx'x or S&P of any change in a Debt Rating, or (vii) the occurrence
of an ERISA Event or the incurrence of any liability by any Company or
ERISA Affiliate with respect to any ERISA Event, in either case which
is a Material Adverse Event, specifying the nature thereof and what
action such Company or ERISA Affiliate has taken, is taking, or
proposes to take with respect thereto.
(d) Promptly upon receipt thereof, copies of (A) all notices
from the PBGC terminating or appointing a trustee for any Employee
Plan, (B) all notices of termination or reorganization from any sponsor
of a Multiemployer Plan, (C) all notices from any sponsor of a
Multiemployer Plan imposing withdrawal liability on any Company or
ERISA Affiliate thereof, and (D) all notices from the PBGC regarding a
potential Reportable Event or a request for information to assess the
impact of any proposed transaction of any Company or ERISA Affiliate
thereof.
(e) Promptly after filing, true, correct, and complete copies
of all material reports or filings filed by or on behalf of any Company
to the Securities and Exchange Commission (including each Form 10-K,
Form 10-Q, and Form 8-K filed by or on behalf of any Company), and, if
requested by Administrative Agent any other Governmental Authority.
(f) Promptly upon request therefor by Administrative Agent or
Lenders, such information (not otherwise required to be furnished under
the Loan Documents) respecting the business affairs, assets, and
liabilities of the Companies, and such opinions, certifications, and
documents, in addition to those mentioned in this Agreement, as
reasonably requested.
9.4 INSPECTIONS. Upon reasonable notice, the Companies shall allow
Administrative Agent or any Lender (or their respective Representatives) to
inspect any of their properties, to review reports, files, and other records and
to make and take away copies thereof, to conduct tests or investigations, and to
discuss any of their respective affairs, conditions, and finances with other
creditors, directors, officers, employees, other representatives, and
independent accountants of the Companies, from time to time, during reasonable
business hours.
9.5 TAXES. Except where not a Material Adverse Event, each Company
shall promptly pay when due any and all Taxes other than Taxes the
applicability, amount, or validity of which is being contested in good faith by
lawful proceedings diligently conducted, and against which reserve or other
provision required by GAAP has been made or is otherwise permitted hereunder.
9.6 PAYMENT OF OBLIGATIONS. Borrowers shall pay the Obligation in
accordance with the terms and provisions of the Loan Documents. Borrowers shall
be jointly and severally liable for the Obligation. Except where not a Material
Adverse Event, each Company shall promptly pay (or renew and extend) all of its
material obligations as the same become due (unless such obligations [other than
the Obligation] are being contested in good faith by appropriate proceedings and
against which reserves or other provision required by GAAP has been made).
Notwithstanding anything to the contrary contained in this Agreement or any
other agreement or instrument executed in connection with the payment of any of
the Obligation, the amount of the Obligation for which any Borrower (other than
ACS) is liable shall be limited to an aggregate amount equal to the largest
amount that would not render such Borrower's obligations hereunder subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provision of any applicable state Law.
9.7 MAINTENANCE OF EXISTENCE, ASSETS, AND BUSINESS. Except as otherwise
permitted by SECTION 9.21, each Company shall at all times: (a) maintain its
existence and good standing in the jurisdiction of its organization and its
authority to transact business in all other jurisdictions where the
41 ACS CREDIT AGREEMENT
failure to so maintain its existence, good standing, or authority to transact
business is a Material Adverse Event; (b) maintain all licenses, permits, and
franchises necessary for its business where the failure to so maintain is a
Material Adverse Event; and (c) keep all of its assets which are useful in and
necessary to its business in good working order and condition (ordinary wear and
tear excepted) and make all necessary repairs thereto and replacements thereof
except where the failure to so maintain is a Material Adverse Event.
9.8 INSURANCE. The Companies shall, at their cost and expense, maintain
with financially sound, responsible, and reputable insurance companies or
associations insurance covering its properties and business against such risks,
in such amounts, and with no greater risk retention as are customarily
maintained, insured, or retained by companies of established repute engaged in
the same or similar business as such Company. Upon the request of Administrative
Agent, ACS will furnish to Lenders information presented in reasonable detail as
to the insurance so carried.
9.9 PRESERVATION AND PROTECTION OF RIGHTS. Each Loan Party shall
perform such acts and duly authorize, execute, acknowledge, deliver, file, and
record any additional agreements, documents, instruments, and certificates as
Administrative Agent or Required Lenders may reasonably deem necessary or
appropriate in order to preserve and protect the Rights of Administrative Agent
and Lenders under any Loan Document.
9.10 EMPLOYEE BENEFIT PLANS. Except where not a Material Adverse Event,
no Loan Party shall permit any of the events or circumstances described in
SECTION 8.10 to exist or occur.
9.11 ENVIRONMENTAL LAWS. Each Company shall (a) conduct its business so
as to comply with all applicable Environmental Laws except to the extent
noncompliance does not constitute a Material Adverse Event and (b) promptly
investigate and remediate any known Release or threatened Release of any
Hazardous Substance on any property owned by any Loan Party or at any facility
operated by any Loan Party to the extent and degree necessary to comply with Law
and to assure that any Release or threatened Release does not result in a
substantial endangerment to human health or the environment except to the
extent, in each case, that the failure to do so would not be a Material Adverse
Event.
9.12 DEBT AND GUARANTIES.
(a) No Loan Party shall permit any of its Domestic
Subsidiaries that are not Domestic Subsidiary Obligors to, directly or
indirectly, create, incur, or suffer to exist any Debt, other than: (i)
Debt owed to another Company and (ii) other Debt, so long as on any
date of determination, such other Debt of all such Domestic
Subsidiaries in the aggregate (without duplication) does not exceed 7
1/2% of Net Worth on such date; and
(b) No Loan Party shall permit any of its Foreign Subsidiaries
to, directly or indirectly, create, incur, or suffer to exist any Debt,
other than: so long as on any date of determination (i) if no Foreign
Stock Pledge has been delivered in order to satisfy the requirements of
SECTION 6.1, the Debt of all Foreign Subsidiaries in the aggregate
(without duplication and excluding Debt owed to another Company) does
not exceed 20% of the Net Worth on such date, or (ii) if any Foreign
Stock Pledge has been delivered in order to satisfy the requirements of
SECTION 6.1, the Debt of all Foreign Subsidiaries in the aggregate
(without duplication and excluding Debt owed to another Company) does
not exceed 10% of Net Worth on such date.
9.13 LIENS. No Company will, directly or indirectly, (a) enter into or
permit to exist any arrangement or agreement which directly or indirectly
prohibits any Company (other than Domestic
42 ACS CREDIT AGREEMENT
Subsidiaries that are not Domestic Subsidiary Obligors and Foreign Subsidiaries
that are not (i) Pledged Foreign Subsidiaries or (ii) Included Foreign
Subsidiaries) from creating or incurring any Lien on any of its assets, other
than (x) the Loan Documents, (y) customary provisions in leases restricting the
assignment thereof, and (z) the agreements evidencing Liens permitted by CLAUSES
(b)(iv) through (x) below, so long as such prohibitions extend solely to the
property or assets covered by such Liens, or (b) create, incur, or suffer or
permit to be created or incurred or to exist any Lien upon any of its assets,
except:
(i) Liens securing the Obligation;
(ii) Pledges or deposits made to secure payment of
worker's compensation, or to participate in any fund in
connection with worker's compensation, unemployment insurance,
pensions, or other social security programs, but expressly
excluding any Liens in favor of the PBGC or otherwise under
ERISA the existence of which is not a Material Adverse Event;
(iii) Good-faith pledges, Liens, or deposits made to
secure performance of bids, tenders, insurance or other
contracts (other than for the repayment of borrowed money), or
leases, or to secure statutory obligations, surety or appeal
bonds, or indemnity, performance, or other similar bonds as
all such Liens arise in the ordinary course of business;
(iv) Encumbrances consisting of zoning restrictions,
easements, or other restrictions on the use of real property,
none of which impair in any material respect the use of such
property by the Person in question in the operation of its
business, and none of which is violated by existing or
proposed structures or land use, in any case which is a
Material Adverse Event;
(v) Liens of landlords or of mortgagees of landlords
on fixtures and movable tangible property located on premises
leased in the ordinary course of business;
(vi) (x) claims and Liens for Taxes; (y) claims and
Liens upon, and defects of title to, real or personal
property, including any attachment of personal or real
property or other legal process prior to adjudication of a
dispute of the merits; and (z) claims and Liens of mechanics,
materialmen, warehousemen, carriers, landlords, or other like
Liens; so long as (A) the validity or amount thereof is being
contested in good faith and by appropriate and lawful
proceedings diligently conducted, reserve or other appropriate
provisions (if any) required by GAAP shall have been made, and
levy and execution thereon have been stayed and continue to be
stayed, or (B) the existence thereof is not a Material Adverse
Event;
(vii) Liens existing on the Closing Date and Liens
securing Capital Leases and purchase money obligations
(together with any renewal, extension, amendment, or
modification of any such Lien) so long as (w) in the case of
existing Liens, such Liens shall never extend to any assets
other than the assets subject to such Liens on the Closing
Date, (x) in the case of existing Liens, the total-principal
amount secured by those Liens never exceeds the greater of
either the total-principal amount secured as of the Closing
Date, (y) in the case of Liens securing Capital Leases, those
Liens never cover any assets except the assets subject to the
specific Capital Lease, and (z) in the case of Liens securing
purchase money obligations, those Liens never cover any assets
except the assets purchased or financed by such obligations;
43 ACS CREDIT AGREEMENT
(viii) Liens on the accounts receivable to the extent
permitted by SECTION 9.20;
(ix) Liens assumed in connection with any
Acquisition, which Liens are in existence at the time of such
Acquisition, not created in contemplation of such Acquisition,
and do not cover any assets other than the assets acquired
pursuant to such Acquisition; provided that such assumed Liens
are released and terminated within ninety (90) days following
the effective date of such Acquisition (or such Lien is
otherwise permitted under any other clause of this SECTION
9.13(b)); and
(x) Other Liens not otherwise permitted by this
SECTION 9.13(b), so long as on any date of determination, the
Debt secured by such Liens does not exceed 1% of the book
value of the assets of the Companies in the aggregate.
9.14 TRANSACTIONS WITH AFFILIATES. No Company shall (a) enter into any
material transaction with any of its Affiliates (excluding transactions among or
between Companies and transactions permitted under SECTION 9.20), other than
transactions in the ordinary course of business and upon fair and reasonable
terms which have been approved by a majority of the respective Company's Board
of Directors that are disinterested in such transaction, or (b) pay any salaries
or other compensation, consulting fees, or management fees or other like
payments to any of its Affiliates, other than in the ordinary course of business
for services rendered.
9.15 COMPLIANCE WITH LAWS AND DOCUMENTS. No Company shall violate the
provisions of any Laws (including, without limitation, Environmental Laws,
Environmental Permits, ERISA, and OSHA) applicable to it, or any Material
Agreement to which it is a party, if such violation is a Material Adverse Event;
no Company shall violate the provisions of its Constituent Documents, or modify,
repeal, replace, or amend any provision of its Constituent Documents in a manner
that would not allow a Loan Party to fulfill its obligations under the Loan
Documents.
9.16 ACCOUNTING METHODS. No Company will change its method of
accounting, other than immaterial changes in methods or as permitted by GAAP.
9.17 GOVERNMENT REGULATIONS. No Company will conduct its business in
such a way that it will become subject to regulation under the Investment
Company Act of 1940, as amended, the Public Utility Holding Company Act of 1935,
as amended, or any other Law (other than Regulations T, U, and X of the Board of
Governors of the Federal Reserve System) which regulates the incurrence of Debt.
9.18 RESTRICTIONS ON SUBSIDIARIES. No Loan Party shall enter into or
permit to exist any material arrangement or agreement which directly or
indirectly prohibits any such Loan Party from (a) declaring, making, or paying,
directly or indirectly, any Distribution to any other Loan Party, (b) paying any
Debt owed by a Loan Party to any other Loan Party, (c) making loans, advances,
or investments to any other Loan Party, or (d) transferring any of its property
or assets to any other Loan Party; provided that the foregoing shall not apply
to restrictions or conditions (i) imposed by Law, (ii) imposed by any Loan
Document, and (iii) customarily contained in agreements relating to the sale of
any Loan Party pending the sale of such Loan Party, so long as such restrictions
and conditions apply only to the Loan Party that is to be sold and such sale is
not prohibited by the Loan Documents.
9.19 SALE OF ASSETS. The Companies (taken as a whole) shall not sell,
assign, transfer, or otherwise dispose of, in one transaction or a series of
transactions, all or substantially all (determined on a consolidated basis with
respect to ACS and all of its Subsidiaries) of their businesses or assets,
including the Stock of their Subsidiaries other than to other Companies.
44 ACS CREDIT AGREEMENT
9.20 ACCOUNTS RECEIVABLE FINANCING. No Company may sell, securitize, or
otherwise transfer or encumber accounts receivable resulting in funding
aggregating more than $200,000,000 at any one time outstanding (such amount
referred to herein as the "RECEIVABLES FINANCING AMOUNT").
9.21 MERGERS AND DISSOLUTIONS. No Loan Party or Material Subsidiary
will, directly or indirectly, merge or consolidate with any Person, other than
(a) as a result of an Acquisition or (b) with or into another Company, provided
that in any such merger or consolidation involving ACS, ACS is the surviving
corporation. Neither ACS nor any Subsidiary shall liquidate, wind up, or
dissolve (or suffer any liquidation or dissolution), other than (i)
liquidations, wind ups, or dissolutions incident to mergers permitted under this
SECTION 9.21 and (ii) other liquidations, wind ups, or dissolutions of the
Companies (other than ACS) so long as no Default or Potential Default exists or
arises as a result therefrom after giving effect to the addition of Borrowers,
Guarantors, or Foreign Stock Pledges added concurrently with such actions
pursuant to SECTIONS 6.1 or 6.2.
9.22 FINANCIAL COVENANTS. As calculated on a consolidated basis for the
Companies:
(a) Leverage Ratio. Borrowers shall never permit the Leverage
Ratio to be greater than 2.75 to 1.00.
(b) Fixed Charge Coverage Ratio. Borrowers shall never permit
the Fixed Charge Coverage Ratio to be less than 1.50 to 1.00.
(c) Net Worth. Borrowers shall never permit the Net Worth
(determined as of the last day of each fiscal quarter of ACS) to be
less than the sum of (i) $1,571,565,000, plus (ii) 75% of the
Companies' cumulative net income (after giving effect to any minority
interests and without deduction for losses) commencing with the fiscal
quarter ending September 30, 2002, plus (iii) 50% of the gross proceeds
of any Equity Issuance (including changes in Net Worth due to any
conversions of Debt to Stock of any Company).
9.23 ACQUISITIONS . No Company shall consummate any Acquisition if any
Default or Potential Default exists or arises as a result therefrom.
SECTION 10 DEFAULT. The term "DEFAULT" means the occurrence of any one or more
of the following events:
10.1 PAYMENT OF OBLIGATION. The failure or refusal of any Loan Party to
pay (a) Principal Debt when the same becomes due (whether by its terms, by
acceleration, or as otherwise provided in the Loan Documents); (b) interest,
fees, or any other part of the Obligation within five days after the same
becomes due and payable in accordance with the Loan Documents; or (c) the
indemnifications and reimbursement obligations provided for in the Loan
Documents after demand therefor.
10.2 COVENANTS. The failure or refusal of any Borrower (and, if
applicable, any other Loan Party) to punctually and properly perform, observe,
and comply with:
(a) Any covenant, agreement, or condition contained in
SECTIONS 6.1, 9.1, 9.3, 9.4, 9.10, 9.12, 9.13, and 9.19 through 9.22;
and
(b) Any other covenant, agreement, or condition contained in
any Loan Document (other than the covenants to pay the Obligation set
forth in SECTION 10.1 and the covenants in SECTION 10.2(a)), and such
failure or refusal continues for 20 days.
45 ACS CREDIT AGREEMENT
10.3 DEBTOR RELIEF. (a) Any Borrower or any Material Subsidiary that is
a Guarantor or whose Stock is pledged pursuant to any Loan Document (i) shall
not be Solvent or (ii) fails to pay its Debts generally as they become due or
(b) any Borrower or any Material Subsidiary, (i) voluntarily seeks, consents to,
or acquiesces in the benefit of any Debtor Relief Law, other than as a creditor
or claimant, or (ii) becomes a party to or is made the subject of any proceeding
provided for by any Debtor Relief Law, other than as a creditor or claimant
(unless, in the event such proceeding is involuntary, the petition instituting
same is dismissed within 60 days after its filing; provided, however, that no
order for relief shall have been entered in the interim).
10.4 JUDGMENTS AND ATTACHMENTS. Where it is a Material Adverse Event,
any Company fails, within 60 days after entry thereof, to pay, bond, or
otherwise discharge (a) any judgment or order for the payment of money or (b)
any warrant of attachment, sequestration, or similar proceeding against any of
its respective assets, each of which is not stayed on appeal.
10.5 GOVERNMENT ACTION. Where it is a Material Adverse Event (a) a
final non-appealable order is issued by any Governmental Authority, including,
but not limited to, the United States Justice Department, seeking to cause any
Company to divest a significant portion of its assets pursuant to any antitrust,
restraint of trade, unfair competition, industry regulation, or similar Laws, or
(b) any Governmental Authority shall condemn, seize, or otherwise appropriate,
or take custody or control of all or any substantial portion of the assets of
any Company.
10.6 MISREPRESENTATION. Any representation or warranty made herein or
in any Loan Document shall at any time prove to have been incorrect in any
material respect when made.
10.7 CHANGE OF CONTROL. With respect to ACS, an event or series of
events by which: (a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934) (other than Xxxxxx
Xxxxxx, the Xxxxxx International Trust, or any Person controlled by Xxxxxx
Xxxxxx or the Xxxxxx International Trust) becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
except that a Person shall be deemed to have "beneficial ownership" of all Stock
that such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of fifty
percent (50%) or more of the Stock of ACS; or (b) during any period of twelve
(12) consecutive months, a majority of the members of the board of directors or
other equivalent governing body of ACS cease to be composed of individuals (i)
who were members of such board or equivalent governing body on the first (1st)
day of such period, (ii) whose election or nomination to such board or
equivalent governing body was approved by individuals referred to in CLAUSE (i)
above constituting at the time of such election or nomination at least a
majority of such board or equivalent governing body, or (iii) whose election or
nomination to such board or other equivalent governing body was approved by
individuals referred to in CLAUSES (i) and (ii) above constituting at the time
of such election or nomination at least a majority of such board or equivalent
governing body; provided that, in determining compliance with this SECTION
10.7(b), any "independent directors" elected or appointed to the board of
directors or other equivalent governing body of ACS pursuant to and in
compliance with the rules (whether existing on the date hereof or promulgated
thereafter) of (x) the
New York Stock Exchange, (y) any other stock exchange on
which the Stock of ACS is traded, or (z) the Securities and Exchange Commission
shall not be considered in determining a majority of the board or equivalent
governing body.
10.8 DEFAULT UNDER OTHER DEBT AND AGREEMENTS. (a) In respect of any
Debt of any Company (individually or collectively), any default or other event
or condition occurs or exists (other than a mandatory prepayment as a result of
a disposition of assets or the issuance of equity or debt) beyond the applicable
grace or cure period the effect of which is to cause or to permit any holder of
(or trustee with respect to) that Debt to cause, whether or not it elects to
cause, any of that Debt to become due (whether by acceleration, redemption, or
otherwise) before its stated maturity or regularly scheduled
46 ACS CREDIT AGREEMENT
payment dates, which default, event, or condition is a Material Adverse Event;
or (b) any default or other event or condition occurs or exists with respect to
any Debt of any Company (individually or collectively) in excess of $50,000,000
and such Debt is accelerated or a mandatory redemption arises as a result
thereof.
10.9 EMPLOYEE BENEFIT PLANS. (a) Any Company or ERISA Affiliate shall
fail to pay when due an amount or amounts for which it is liable under Title IV
of ERISA to the extent that the failure to pay is a Material Adverse Event; or
(b) an ERISA Event shall occur or exist with respect to any Employee Plan or
Multiemployer Plan, and as a result of such ERISA Event and all other ERISA
Events then-existing, the aggregate liabilities incurred (or in the reasonable
judgment of Required Lenders, likely to be incurred) of the Companies and the
ERISA Affiliates to any Employee Plan, Multiemployer Plan, or the PBGC (or any
combination thereof) shall constitute a Material Adverse Event.
10.11 VALIDITY AND ENFORCEABILITY OF LOAN DOCUMENTS. Any Loan Document
shall, at any time after its execution and delivery and for any reason, cease to
be in full force and effect in any material respect or be declared to be null
and void (other than in accordance with the terms hereof or thereof) or the
validity or enforceability thereof be contested by any Company party thereto or
any Company shall deny in writing that it has any or any further liability or
obligations under any Loan Document to which it is a party.
SECTION 11 RIGHTS AND REMEDIES.
11.1 REMEDIES UPON DEFAULT.
(a) Debtor Relief. If a Default exists under SECTION
10.3(b)(i) or 10.3(b)(ii) with respect to any Borrower or any Material
Subsidiary which is a Guarantor, the commitment to extend credit
hereunder shall automatically terminate and the entire unpaid balance
of the Obligation shall automatically become due and payable without
any action or notice of any kind whatsoever, and Borrowers (jointly and
severally) shall be required to provide cash collateral in an amount
equal to 100% of the Dollar Equivalent of the LC Exposure then existing
in accordance with SECTION 2.2(g).
(b) Other Defaults. If any Default exists, Administrative
Agent may (and, subject to the terms of SECTION 12, shall upon the
request of Required Lenders) or Required Lenders may, do any one or
more of the following: (i) if the maturity of the Obligation has not
already been accelerated under SECTION 11.1(a), declare the entire
unpaid balance of the Obligation, or any part thereof, immediately due
and payable, whereupon it shall be due and payable; (ii) terminate the
commitments of Lenders to extend credit hereunder; (iii) reduce any
claim to judgment; (iv) to the extent permitted by Law, exercise (or
request each Lender to, and each Lender shall be entitled to, exercise)
the Rights of offset or banker's Lien against the interest of each Loan
Party in and to every account and other property of any Loan Party
which is in the possession of Administrative Agent or any Lender to the
extent of the full amount of the Obligation (to the extent permitted by
Law, each Loan Party being deemed directly obligated to each Lender in
the full amount of the Obligation for such purposes); (v) if cash
collateral is not already required to be provided under SECTION
11.1(a), demand Borrowers to provide cash collateral in an amount equal
to 100% of the LC Exposure then existing in accordance with SECTION
2.2(g); and (vi) exercise any and all other legal or equitable Rights
afforded by the Loan Documents, the Laws of the State of
New York, or
any other applicable jurisdiction as Administrative Agent or Required
Lenders (as the case may be) shall deem appropriate, or otherwise,
including, but not limited to, the Right to bring suit or other
proceedings before any Governmental Authority either for specific
performance of any covenant or condition contained in any of the Loan
Documents or in aid of
47 ACS CREDIT AGREEMENT
the exercise of any Right granted to Administrative Agent or any Lender
in any of the Loan Documents.
11.2 COMPANY WAIVERS; NO RELEASE. To the extent permitted by Law, the
Loan Parties hereby waive presentment and demand for payment, protest, notice of
intention to accelerate, notice of acceleration, and notice of protest and
nonpayment, and agree that their respective liability with respect to the
Obligation (or any part thereof) shall not be affected by any renewal or
extension in the time of payment of the Obligation (or any part thereof), by any
indulgence, or by any release or change in any security for the payment of the
Obligation (or any part thereof). No Borrower's obligations under the Loan
Documents may be released, diminished, or affected by the occurrence of any one
or more of the following events: (a) any full or partial release of the
liability of any other obligor on the Obligation, including, without limitation,
any release of any other Borrower as contemplated by SECTION 6.2, except for any
final release resulting from payment in full of such Obligation; (b) the
insolvency, bankruptcy, or lack of corporate or partnership power of any other
obligor at any time liable for any of the Obligation, whether now existing or
occurring in the future; (c) the unenforceability of any of the Obligation
against any other obligor or any security securing same because it exceeds the
amount permitted by Law, the act of creating it is ultra xxxxx, the officers
creating it exceeded their authority or violated their fiduciary duties in
connection with it, or otherwise; or (d) any payment of the Obligation to
Administrative Agent or any Lender is held to constitute a preference under any
Debtor Relief Law or for any other reason Administrative Agent or any Lender is
required to refund that payment or make payment to someone else (and in each
such instance each Guaranty will be reinstated in an amount equal to that
payment).
11.3 PERFORMANCE BY ADMINISTRATIVE AGENT. If any covenant, duty, or
agreement of any Company is not performed in accordance with the terms of the
Loan Documents, after the occurrence and during the continuance of a Default,
Administrative Agent may, at its option (but subject to the approval of Required
Lenders), perform or attempt to perform such covenant, duty, or agreement on
behalf of such Company. In such event, any reasonable amount expended by
Administrative Agent in such performance or attempted performance shall be
payable by the Loan Parties, jointly and severally, to Administrative Agent on
demand, shall become part of the Obligation, and shall bear interest at the
Default Rate from the date of such expenditure by Administrative Agent until
paid. Notwithstanding the foregoing, it is expressly understood that
Administrative Agent does not assume, and shall never have, except by its
express written consent, any liability or responsibility for the performance of
any covenant, duty, or agreement of any Company.
11.4 DELEGATION OF DUTIES AND RIGHTS. Lenders may perform any of their
duties or exercise any of their Rights under the Loan Documents by or through
their respective Representatives.
11.5 NOT IN CONTROL. Nothing in any Loan Document shall, or shall be
deemed to (a) give any Agent or any Lender the Right to exercise control over
the assets (including real property), affairs, or management of any Company, (b)
preclude or interfere with compliance by any Company with any Law, or (c)
require any act or omission by any Company that may be harmful to Persons or
property. The Agents and the Lenders have no fiduciary relationship with or
fiduciary duty to any Company arising out of or in connection with the Loan
Documents, and the relationship between the Agents and the Lenders, on the one
hand, and Companies, on the other hand, in connection with the Loan Documents is
solely that of debtor and creditor. The power of the Agents and Lenders under
the Loan Documents is limited to the Rights provided in the Loan Documents,
which Rights exist solely to assure payment and performance of the Obligation
and may be exercised in a manner calculated by the Agents and Lenders in their
respective good faith business judgment.
11.6 COURSE OF DEALING. The acceptance by Administrative Agent or
Lenders at any time and from time to time of partial payment on the Obligation
shall not be deemed to be a waiver of any Default then existing. No waiver by
Administrative Agent, Required Lenders, or Lenders of any Default shall be
48 ACS CREDIT AGREEMENT
deemed to be a waiver of any other then-existing or subsequent Default. No delay
or omission by Administrative Agent, Required Lenders, or Lenders in exercising
any Right under the Loan Documents shall impair such Right or be construed as a
waiver thereof or any acquiescence therein, nor shall any single or partial
exercise of any such Right preclude other or further exercise thereof, or the
exercise of any other Right under the Loan Documents or otherwise.
11.7 CUMULATIVE RIGHTS. All Rights available to Administrative Agent
and Lenders under the Loan Documents are cumulative of and in addition to all
other Rights granted to Administrative Agent and Lenders at Law or in equity,
whether or not the Obligation is due and payable and whether or not
Administrative Agent or Lenders have instituted any suit for collection,
foreclosure, or other action in connection with the Loan Documents.
11.8 APPLICATION OF PROCEEDS. Any and all proceeds ever received by
Administrative Agent or Lenders from the exercise of any Rights pertaining to
the Obligation shall be applied to the Obligation in the order and manner set
forth in SECTION 3.12.
11.9 CERTAIN PROCEEDINGS. Each Loan Party will promptly execute and
deliver, or cause the execution and delivery of, after receipt of request
therefor in accordance with the terms hereof, all applications, certificates,
instruments, registration statements, and all other documents and papers
Administrative Agent or Lenders may reasonably request in connection with the
obtaining of any consent, approval, registration (other than securities Law
registration), qualification, permit, license, or Authorization of any
Governmental Authority or other Person necessary or appropriate for the
effective exercise of any Rights under the Loan Documents. Because the Loan
Parties agree that Administrative Agent's and Lenders' remedies at Law for
failure of the Loan Parties to comply with the provisions of this Section would
be inadequate and that such failure would not be adequately compensable in
damages, the Loan Parties agree that the covenants of this Section may be
specifically enforced.
11.10 EXPENDITURES BY LENDERS. Borrowers shall promptly pay within
fifteen (15) Business Days after receipt of an invoice or other statement of
notice (a) all reasonable costs, fees, and expenses paid or incurred by
Administrative Agent and Arranger, incident to any Loan Document (including, but
not limited to, the reasonable fees and expenses of counsel to Administrative
Agent and Arranger and the allocated cost of internal counsel in connection with
the negotiation, preparation, delivery, execution, coordination and
administration of the Loan Documents and any related amendment, waiver, or
consent) and (b) all reasonable costs and expenses of Lenders and Administrative
Agent incurred by Administrative Agent or any Lender in connection with the
enforcement of the obligations of any Loan Party arising under the Loan
Documents (including, without limitation, costs and expenses incurred in
connection with any workout or bankruptcy) or the exercise of any Rights arising
under the Loan Documents (including, but not limited to, reasonable attorneys'
fees including allocated cost of internal counsel, court costs and other costs
of collection), all of which shall be a part of the Obligation and shall bear
interest at the Default Rate from the date due until the date repaid.
11.11 INDEMNIFICATION. EACH BORROWER AND EACH OTHER LOAN PARTY (BY
EXECUTION OF SUPPLEMENTAL AGREEMENTS TO THE LOAN DOCUMENTS, A GUARANTY, OR
COLLATERAL DOCUMENTS) AGREES, JOINTLY AND SEVERALLY, TO INDEMNIFY AND HOLD
HARMLESS EACH AGENT, ARRANGER, LC ISSUER, AND EACH LENDER AND EACH OF THEIR
RESPECTIVE AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, ATTORNEYS, AND ADVISORS (EACH, AN "INDEMNIFIED PARTY") FROM AND AGAINST
ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES (INCLUDING, WITHOUT LIMITATION,
ANY ENVIRONMENTAL LIABILITIES), COSTS, AND EXPENSES (INCLUDING, WITHOUT
LIMITATION, REASONABLE ATTORNEYS' FEES) THAT MAY BE INCURRED BY OR ASSERTED OR
AWARDED AGAINST ANY INDEMNIFIED PARTY, IN EACH CASE ARISING OUT OF OR IN
CONNECTION WITH OR BY REASON OF (INCLUDING, WITHOUT LIMITATION, IN CONNECTION
WITH ANY INVESTIGATION, LITIGATION, OR PROCEEDING OR
49 ACS CREDIT AGREEMENT
PREPARATION OF DEFENSE IN CONNECTION THEREWITH) THE LOAN DOCUMENTS, ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN OR THE ACTUAL OR PROPOSED USE OF THE PROCEEDS
OF THE BORROWINGS (INCLUDING ANY OF THE FOREGOING ARISING FROM THE NEGLIGENCE OF
THE INDEMNIFIED PARTY), EXCEPT TO THE EXTENT SUCH CLAIM, DAMAGE, LOSS,
LIABILITY, COST, OR EXPENSE IS FOUND IN A FINAL, NON-APPEALABLE JUDGMENT BY A
COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED PARTY'S
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN THE CASE OF AN INVESTIGATION,
LITIGATION OR OTHER PROCEEDING TO WHICH THE INDEMNITY IN THIS SECTION 11.11
APPLIES, SUCH INDEMNITY SHALL BE EFFECTIVE WHETHER OR NOT SUCH INVESTIGATION,
LITIGATION OR PROCEEDING IS BROUGHT BY ANY BORROWER, ITS DIRECTORS,
SHAREHOLDERS, OR CREDITORS, OR AN INDEMNIFIED PARTY OR ANY OTHER PERSON OR ANY
INDEMNIFIED PARTY IS OTHERWISE A PARTY THERETO AND WHETHER OR NOT THE
TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED. EACH BORROWER AND EACH OTHER
LOAN PARTY (BY EXECUTION OF SUPPLEMENTAL AGREEMENTS TO THE LOAN DOCUMENTS, A
GUARANTY, OR COLLATERAL DOCUMENTS) AGREES NOT TO ASSERT ANY CLAIM AGAINST ANY
INDEMNIFIED PARTY ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT,
CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR OTHERWISE RELATING TO THE
LOAN DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THE ACTUAL OR
PROPOSED USE OF THE PROCEEDS OF THE BORROWINGS. WITHOUT PREJUDICE TO THE
SURVIVAL OF ANY OTHER AGREEMENT OF THE COMPANIES HEREUNDER, THE AGREEMENTS AND
OBLIGATIONS OF THE LOAN PARTIES CONTAINED IN THIS SECTION 11.11 SHALL SURVIVE
THE PAYMENT IN FULL OF THE BORROWINGS AND ALL OTHER AMOUNTS PAYABLE UNDER THE
LOAN DOCUMENTS AND THE TERMINATION OF THE REVOLVER COMMITMENT.
SECTION 12 AGREEMENT AMONG LENDERS.
12.1 ADMINISTRATIVE AGENT; LC ISSUERS.
(a) Appointment of Administrative Agent. Each Lender hereby
appoints Xxxxx Fargo Bank Texas, National Association (and Xxxxx Fargo
Bank Texas, National Association hereby accepts such appointment) as
its nominee and agent, in its name and on its behalf: (i) to act as
nominee for and on behalf of such Lender in and under all Loan
Documents; (ii) to arrange the means whereby the funds of Lenders are
to be made available to Borrowers under the Loan Documents; (iii) to
take such action as may be requested by any Lender under the Loan
Documents (when such Lender is entitled to make such request under the
Loan Documents and after such requesting Lender has obtained the
concurrence of such other Lenders as may be required under the Loan
Documents); (iv) to receive all documents and items to be furnished to
Lenders under the Loan Documents; (v) to timely distribute, and
Administrative Agent agrees to so distribute, to each Lender all
material information, requests, documents, and items received from
Borrowers under the Loan Documents; (vi) to promptly distribute to each
Lender its Pro Rata Part of each payment or prepayment (whether
voluntary, as proceeds of collateral upon or after foreclosure, or
otherwise) in accordance with the terms of the Loan Documents; (vii) to
deliver to the appropriate Persons requests, demands, approvals, and
consents received from Lenders; and (viii) to execute, on behalf of
Lenders, such releases or other documents or instruments as are
permitted by the Loan Documents or as directed by Lenders from time to
time; provided, however, Administrative Agent shall not be required to
take any action which exposes Administrative Agent to personal
liability or which is contrary to the Loan Documents or applicable Law.
(b) Actions of LC Issuers. Each LC Issuer shall act on behalf
of the Lenders with respect to any LC issued by it and the documents
associated therewith, and the LC Issuer shall have all of the benefits
and immunities (i) provided to the Administrative Agent in this SECTION
12 with respect to any acts taken or omissions suffered by such LC
Issuer in connection with LCs
50 ACS CREDIT AGREEMENT
issued by it or proposed to be issued by it and the LC Agreements
pertaining to such LCs as fully as if the term "Administrative Agent"
as used in this SECTION 12 included the LC Issuer with respect to such
acts or omissions, and (ii) as additionally provided herein with
respect to the LC Issuer.
(c) Resignation of Administrative Agent. Successor
Administrative Agents. Administrative Agent may resign at any time as
Administrative Agent under the Loan Documents by giving written notice
thereof to Lenders and may be removed as Administrative Agent under the
Loan Documents at any time with cause by Required Lenders; provided
that any such resignation by Xxxxx Fargo shall also constitute its
resignation as the Swing Line Lender and a LC Issuer. Should the
initial or any successor Administrative Agent ever cease to be a party
hereto or should the initial or any successor Administrative Agent ever
resign or be removed as Administrative Agent, then Required Lenders
shall elect the successor Administrative Agent from among the Lenders
(other than the resigning Administrative Agent), with the consent of
ACS (not unreasonably withheld), provided no Default or Potential
Default has occurred and is continuing. If no successor Administrative
Agent shall have been so appointed by Required Lenders and consented to
by ACS as provided hereinabove, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or Required
Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of Lenders, with the
consent of ACS (not unreasonably withheld), provided no Default or
Potential Default has occurred and is continuing, appoint a successor
Administrative Agent, which shall be a commercial bank having a
combined capital and surplus of at least $1,000,000,000. Upon the
acceptance of any appointment as Administrative Agent under the Loan
Documents by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with
all the Rights of the retiring Administrative Agent and Swing Line
Lender, and the respective terms "Administrative Agent" and "Swing Line
Lender" shall mean such successor administrative agent and swing line
lender, and the retiring Administrative Agent and Swing Line Lender
shall be discharged from its duties and obligations of Administrative
Agent under the Loan Documents, and each Lender shall execute such
documents as any Lender may reasonably request to reflect such change
in and under the Loan Documents. After any retiring Administrative
Agent's resignation or removal as Administrative Agent under the Loan
Documents, the provisions of this SECTION 12 shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was
Administrative Agent under the Loan Documents.
(d) Administrative Agent as a Lender; Non-Fiduciary.
Administrative Agent, in its capacity as a Lender, shall have the same
Rights under the Loan Documents as any other Lender and may exercise
the same as though it were not acting as Administrative Agent; the term
"Lender" shall, unless the context otherwise indicates, include
Administrative Agent and any LC Issuer hereunder; and any resignation
or removal of Administrative Agent hereunder shall not impair or
otherwise affect any Rights which it has or may have in its capacity as
an individual Lender. Each Lender and each Loan Party agrees that
Administrative Agent is not a fiduciary for Lenders or for the
Companies but simply is acting in the capacity described herein to
alleviate administrative burdens for both the Companies and Lenders,
that Administrative Agent has no duties or responsibilities to Lenders
or the Companies except those expressly set forth herein, and that
Administrative Agent in its capacity as a Lender has all Rights of any
other Lender.
(e) Other Activities of Administrative Agent. Administrative
Agent and its Affiliates may now or hereafter be engaged in one or more
loan, letter of credit, leasing, or other financing transactions with
any Company, act as trustee or depositary for any Company, or otherwise
be engaged in other transactions with any Company (collectively, the
"OTHER ACTIVITIES") not the subject of the Loan Documents. Without
limiting the Rights of Lenders specifically set forth in the Loan
Documents, Administrative Agent and its Affiliates shall not be
51 ACS CREDIT AGREEMENT
responsible to account to Lenders for such other activities, and no
Lender shall have any interest in any other activities, any present or
future guaranties by or for the account of any Company which are not
contemplated or included in the Loan Documents, any present or future
offset exercised by Administrative Agent and its Affiliates in respect
of such other activities, any present or future property taken as
security for any such other activities, or any property now or
hereafter in the possession or control of Administrative Agent or its
Affiliates which may be or become security for the obligations of Loan
Parties arising under the Loan Documents by reason of the general
description of indebtedness secured or of property contained in any
other agreements, documents, or instruments related to any such other
activities; provided that, if any payments in respect of such
guaranties or such property or the proceeds thereof shall be applied to
reduction of the Obligation arising under the Loan Documents, then each
Lender shall be entitled to share in such application on a Pro Rata
basis.
12.2 EXPENSES. Upon demand by Administrative Agent, each Lender shall
pay its Pro Rata Part of any reasonable expenses (including, without limitation,
court costs, reasonable attorneys' fees, and other costs of collection) incurred
by Administrative Agent in connection with any of the Loan Documents if and to
the extent Administrative Agent does not receive reimbursement therefor from
other sources within 60 days after incurred; provided that, each Lender shall be
entitled to receive its Pro Rata Part of any reimbursement for such expenses, or
part thereof, which Administrative Agent subsequently receives from such other
sources.
12.3 PROPORTIONATE ABSORPTION OF LOSSES. Except as otherwise provided
in the Loan Documents, nothing in the Loan Documents shall be deemed to give any
Lender any advantage over any other Lender insofar as the Obligation arising
under the Loan Documents is concerned, or to relieve any Lender from absorbing
its ratable portion of any losses sustained with respect to the Obligation
(except to the extent such losses result from unilateral actions or inactions of
any Lender that are not made in accordance with the terms and provisions of the
Loan Documents).
12.4 DELEGATION OF DUTIES; RELIANCE. Administrative Agent may perform
any of its duties or exercise any of its Rights under the Loan Documents by or
through its Representatives. Administrative Agent and its Representatives shall
(a) be entitled to rely upon (and shall be protected in relying upon) any
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telecopy, telegram, telex or teletype message, statement, order, or other
documents or conversation believed by it or them to be genuine and correct and
to have been signed or made by the proper Person and, with respect to legal
matters, upon opinions of counsel selected by Administrative Agent, (b) be
entitled to deem and treat each Lender as the owner and holder of the Obligation
owed to such Lender for all purposes until, subject to SECTION 13.12, written
notice of the assignment or transfer thereof shall have been given to and
received by Administrative Agent (and any request, authorization, consent, or
approval of any Lender shall be conclusive and binding on each subsequent
holder, assignee, or transferee of the Obligation owed to such Lender or portion
thereof until such notice is given and received), (c) not be deemed to have
notice of the occurrence of a Default or Potential Default unless a responsible
officer of Administrative Agent, who handles matters associated with the Loan
Documents and transactions thereunder, has received written notice from a Lender
or Borrowers and stating that such notice is a "Notice of Default," and (d) be
entitled to consult with legal counsel (including counsel for any Company),
independent accountants, and other experts selected by Administrative Agent and
shall not be liable 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.
12.5 LIMITATION OF LIABILITY.
(a) General. None of the Agents or any of their respective
Representatives shall be liable for any action taken or omitted to be
taken by it or them under the Loan Documents in good faith and
reasonably believed by it or them to be within the discretion or power
conferred upon it
52 ACS CREDIT AGREEMENT
or them by the Loan Documents or be responsible for the consequences of
any error of judgment, except for fraud, gross negligence, or willful
misconduct; and none of the Agents or any of their respective
Representatives has a fiduciary relationship with any Lender by virtue
of the Loan Documents (provided that, nothing herein shall negate the
obligation of Administrative Agent to account for funds received by it
for the account of any Lender).
(b) Non-Discretionary Actions; Indemnification. Unless
indemnified to its satisfaction against loss, cost, liability, and
expense, neither Administrative Agent nor any other Agent shall be
compelled to do any act under the Loan Documents or to take any action
toward the execution or enforcement of the powers thereby created or to
prosecute or defend any suit in respect of the Loan Documents. If
Administrative Agent requests instructions from Lenders or Required
Lenders, as the case may be, with respect to any act or action
(including, but not limited to, any failure to act) in connection with
any Loan Document, Administrative Agent shall be entitled (but shall
not be required) to refrain (without incurring any liability to any
Person by so refraining) from such act or action unless and until it
has received such instructions. Except where action of Required Lenders
or all Lenders is required in the Loan Documents, Administrative Agent
may act hereunder in its own discretion without requesting
instructions. In no event, however, shall Administrative Agent or any
of its respective Representatives be required to take any action which
it or they determine could incur for it or them criminal or onerous
civil liability. Without limiting the generality of the foregoing, no
Lender shall have any right of action against Administrative Agent as a
result of Administrative Agent's acting or refraining from acting
hereunder in accordance with the instructions of Required Lenders (or
all Lenders if required in the Loan Documents).
(c) Independent Credit Decision. Neither Administrative Agent
nor any other Agent or LC Issuer shall be responsible in any manner to
any Lender or any Participant for, and each Lender represents and
warrants that it has not relied upon Administrative Agent, any other
Agent, or any LC Issuer in respect of, (i) the creditworthiness of any
Loan Party and the risks involved to such Lender, (ii) the
effectiveness, enforceability, genuineness, validity, or the due
execution of any Loan Document, (iii) any representation, warranty,
document, certificate, report, or statement made therein or furnished
thereunder or in connection therewith, (iv) the existence, priority, or
perfection of any Lien hereafter granted or purported to be granted
under any Loan Document, or (v) observation of or compliance with any
of the terms, covenants, or conditions of any Loan Document on the part
of any Loan Party. Each Lender agrees to indemnify Administrative Agent
and each LC Issuer and their respective Representatives and hold them
harmless from and against (but limited to such Lender's Pro Rata Part
of) any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, reasonable expenses, and reasonable
disbursements of any kind or nature whatsoever which may be imposed on,
asserted against, or incurred by them in any way relating to or arising
out of the Loan Documents or any action taken or omitted by them under
the Loan Documents (INCLUDING ANY OF THE FOREGOING ARISING FROM THE
NEGLIGENCE OF ADMINISTRATIVE AGENT, ANY LC ISSUER, OR THEIR
REPRESENTATIVES), to the extent Administrative Agent, LC Issuer, and
their respective Representatives are not reimbursed for such amounts by
any Loan Party (provided that, Administrative Agent, any LC Issuer, and
their respective Representatives shall not have the right to be
indemnified hereunder for its or their own fraud, gross negligence, or
willful misconduct).
12.6 DEFAULT; COLLATERAL.
(a) Upon the occurrence and continuance of a Default, Lenders
agree to promptly confer in order that Required Lenders or Lenders, as
the case may be, may agree upon a course of action for the enforcement
of the Rights of Lenders; and Administrative Agent shall be entitled to
refrain from taking any action (without incurring any liability to any
Person for so refraining)
53 ACS CREDIT AGREEMENT
unless and until Administrative Agent shall have received instructions
from Required Lenders. All Rights of action under the Loan Documents
and all Rights to the Collateral, if any, hereunder may be enforced by
Administrative Agent and any suit or proceeding instituted by
Administrative Agent in furtherance of such enforcement shall be
brought in its name as Administrative Agent without the necessity of
joining as plaintiffs or defendants any other Lender, and the recovery
of any judgment shall be for the benefit of Lenders subject to the
expenses of Administrative Agent. In actions with respect to any
property of the Loan Parties, Administrative Agent is acting for the
ratable benefit of each Lender. Any and all agreements to subordinate
(whether made heretofore or hereafter) other indebtedness or
obligations of the Loan Parties to the Obligation shall be construed as
being for the ratable benefit of each Lender.
(b) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition, or other judicial proceeding relative to any Loan Party,
Administrative Agent (irrespective of whether any Principal Debt or LC
Exposure shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on any Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of
the principal and interest owing and unpaid in respect of the
Principal Debt and interest due thereon, LC Exposure, and all
other Obligation that is owing and unpaid and to file such
other documents as may be necessary or advisable in order to
have the claims of the Lenders and Administrative Agent
(including any claim for the reasonable compensation,
expenses, disbursements, and advances of the Lenders and
Administrative Agent and their respective agents and counsel
and all other amounts due the Lenders and the Administrative
Agent under SECTIONS 5 and 11.10) allowed in such judicial
proceeding; and
(ii) to collect and receive any monies or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator, or other similar official in any such judicial proceeding
is hereby authorized by each Lender to make such payments to
Administrative Agent and, in the event that Administrative Agent shall
consent to the making of such payments directly to the Lenders, to pay
to Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements, and advances of Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent
under SECTIONS 5 and 11.10.
Nothing contained herein shall be deemed to authorize Administrative
Agent to authorize or consent to or accept or adopt on behalf of any
Lender any plan of reorganization, arrangement, adjustment, or
composition affecting the Obligation or the Rights of any Lender or to
authorize Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.
(c) Each Lender authorizes and directs Administrative Agent to
enter into the Foreign Stock Pledges for the benefit of the Lenders.
Except to the extent unanimity is required hereunder, each Lender
agrees that any action taken by the Required Lenders in accordance with
the provisions of the Loan Documents, and the exercise by the Required
Lenders of the powers set forth herein or therein, together with such
other powers as are reasonably incidental thereto, shall be authorized
and binding upon all of the Lenders.
54 ACS CREDIT AGREEMENT
(d) Administrative Agent is hereby authorized on behalf of all
of the Lenders, without the necessity of any notice to or further
consent from any Lender, from time to time to take any action with
respect to any Collateral or Foreign Stock Pledges which may be
necessary to perfect and maintain perfected the Liens upon the
Collateral granted pursuant to the Foreign Stock Pledges.
(e) Administrative Agent shall have no obligation whatsoever
to any Lender or to any other Person to assure that the Collateral
exists or is owned by any Loan Party or is cared for, protected, or
insured or has been encumbered or that the Liens granted to
Administrative Agent herein or pursuant hereto have been properly or
sufficiently or lawfully created, perfected, protected, or enforced, or
are entitled to any particular priority, or to exercise at all or in
any particular manner or under any duty of care, disclosure, or
fidelity, or to continue exercising, any of the Rights granted or
available to Administrative Agent in this SECTION 12.6 or in any
Foreign Stock Pledge; it being understood and agreed that in respect of
the Collateral, or any act, omission, or event related thereto,
Administrative Agent may act in any manner it may deem appropriate, in
its sole discretion, given Administrative Agent's own interest in the
Collateral as one of the Lenders and that Administrative Agent shall
have no duty or liability whatsoever to any Lender, other than to act
without gross negligence or willful misconduct.
(f) Lenders hereby irrevocably authorize Administrative Agent,
at its option and in its discretion, to release any Lien granted to or
held by Administrative Agent upon any Collateral: (i) upon termination
of the Revolver Commitment and payment and satisfaction of the
Obligation; (ii) upon the sale, transfer, or disposition of Collateral
which is expressly permitted pursuant to the Loan Documents; (iii) as
contemplated in SECTION 6.2; or (iv) if approved, authorized, or
ratified in writing by all necessary Lenders. Upon request by
Administrative Agent at any time, Lenders will confirm in writing
Administrative Agent's authority to release particular types or items
of Collateral pursuant to this SECTION 12.6.
(g) In furtherance of the authorizations set forth in this
SECTION 12.6, each Lender hereby irrevocably appoints Administrative
Agent its attorney-in-fact, with full power of substitution, for and on
behalf of and in the name of each such Lender, (i) to enter into
Foreign Stock Pledges (including, without limitation, any appointments
of substitute trustees under any Foreign Stock Pledge), (ii) to take
action with respect to the Collateral and Foreign Stock Pledges to
perfect, maintain, and preserve Lenders' Liens, and (iii) to execute
instruments of release or to take other action necessary to release
Liens upon any Collateral to the extent authorized in PARAGRAPH (f)
hereof. This power of attorney shall be liberally, not restrictively,
construed so as to give the greatest latitude to Administrative Agent's
power, as attorney, relative to the Collateral matters described in
this SECTION 12.6. The powers and authorities herein conferred on
Administrative Agent may be exercised by Administrative Agent through
any Person who, at the time of the execution of a particular
instrument, is an officer of Administrative Agent. The power of
attorney conferred by this SECTION 12.6(g) is granted for valuable
consideration and is coupled with an interest and is irrevocable so
long as the Obligation, or any part thereof, shall remain unpaid or
Lenders are obligated to make any Borrowings under the Loan Documents.
12.7 LIMITATION OF LIABILITY. To the extent permitted by Law, (a)
neither Administrative Agent nor any other Agent (acting in their respective
agent capacities) shall incur any liability to any other Lender, Agent, or
Participant except for acts or omissions resulting from its own fraud, gross
negligence or willful misconduct, and (b) neither Administrative Agent nor any
other Agent, Lender, or Participant shall incur any liability to any other
Person for any act or omission of any other Lender, Agent, or Participant.
55 ACS CREDIT AGREEMENT
12.8 RELATIONSHIP OF LENDERS. Nothing herein shall be construed as
creating a partnership or joint venture among Agents and Lenders.
12.9 BENEFITS OF AGREEMENT. None of the provisions of this SECTION 12
shall inure to the benefit of any Company or any other Person other than
Lenders; consequently, no Company or any other Person shall be entitled to rely
upon, or to raise as a defense, in any manner whatsoever, the failure of any
Agent or any Lender to comply with such provisions.
12.10 AGENTS. None of the Lenders identified in this Agreement as a
"Co-Syndication Agent," "Co-Documentation Agent," or "Senior Managing Agent"
shall have any Rights, powers, obligations, liabilities, responsibilities, or
duties under the Loan Documents other than those applicable to all Lenders as
such. Without limiting the foregoing, none of the Lenders so identified as a
"Co-Syndication Agent," "Co-Documentation Agent," or "Senior Managing Agent"
shall have or be deemed to have any fiduciary relationship with any Lender. Any
Lender that is a "Co-Syndication Agent," "Co-Documentation Agent," or "Senior
Managing Agent," may voluntarily relinquish its title by giving written notice
thereof to Administrative Agent and Borrowers. Upon such relinquishments, a
successor "Co-Syndication Agent," "Co-Documentation Agent," or "Senior Managing
Agent" may be appointed upon the mutual agreement of Borrowers and
Administrative Agent.
12.11 OBLIGATIONS SEVERAL. The obligations of Lenders hereunder are
several, and each Lender hereunder shall not be responsible for the obligations
of the other Lenders hereunder, nor will the failure of one Lender to perform
any of its obligations hereunder relieve the other Lenders from the performance
of their respective obligations hereunder.
SECTION 13 MISCELLANEOUS.
13.1 HEADINGS. The headings, captions, and arrangements used in any of
the Loan Documents are, unless specified otherwise, for convenience only and
shall not be deemed to limit, amplify, or modify the terms of the Loan
Documents, nor affect the meaning thereof.
13.2 NONBUSINESS DAYS. In any case where any payment or action is due
under any Loan Document on a day which is not a Business Day, such payment or
action may be delayed until the next-succeeding Business Day, but interest and
fees shall continue to accrue in respect of any payment to which it is
applicable until such payment is in fact made; provided that, if, in the case of
any such payment in respect of a Eurodollar Rate Borrowing, the next-succeeding
Business Day is in the next calendar month, then such payment shall be made on
the next-preceding Business Day.
13.3 COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in
writing (including by facsimile transmission). All such written notices
shall be mailed, faxed or delivered to the applicable address,
facsimile number or (subject to CLAUSE (c) below) electronic mail
address, and all notices and other communications expressly permitted
hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:
(i) if to Administrative Agent, to the address,
facsimile number, electronic mail address or telephone number
specified for Administrative Agent on SCHEDULE 2.1 or to such
other address, facsimile number, electronic mail address, or
telephone number as shall be designated by such party in a
notice to the other parties;
56 ACS CREDIT AGREEMENT
(ii) if to Borrowers or any other Loan Party, the
address set forth by such Person's signature on the signature
page of this Agreement or the Guaranty or Foreign Stock Pledge
(as applicable) to which such other Loan Party is a party or
to such other address, facsimile number, electronic mail
address, or telephone number as shall be designated by such
party in a notice to Administrative Agent; and
(iii) if to any other Lender, to the address,
facsimile number, electronic mail address, or telephone number
specified in its Administrative Questionnaire or to such other
address, facsimile number, electronic mail address or
telephone number as shall be designated by such party in a
notice to the other parties.
All such notices and other communications shall be deemed to be given
or made upon the earlier to occur of (i) actual receipt by the relevant
party hereto and (ii) (A) if delivered by hand or by courier, when
signed for by or on behalf of the relevant party hereto; (B) if
delivered by mail, four Business Days after deposit in the mails,
postage prepaid; (C) if delivered by facsimile, when sent and receipt
has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of CLAUSE (c)
below), when delivered; provided, however, that notices and other
communications to Administrative Agent, any LC Issuer, and the Swing
Line Lender pursuant to SECTION 2 shall not be effective until actually
received by such Person. In no event shall a voicemail message be
effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The
effectiveness of any such documents and signatures shall, subject to
applicable Law, have the same force and effect as manually-signed
originals and shall be binding on all Loan Parties, Administrative
Agent, and the Lenders. Administrative Agent may also require that any
such documents and signatures be confirmed by a manually-signed
original thereof; provided, however, that the failure to request or
deliver the same shall not limit the effectiveness of any facsimile
document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and
Internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information as
provided in SECTION 9.3, and to distribute Loan Documents for execution
by the parties thereto, and may not be used for any other purpose.
13.4 FORM AND NUMBER OF DOCUMENTS. Each agreement, document,
instrument, or other writing to be furnished under any provision of the Loan
Documents must be in form and substance and in such number of counterparts as
may be reasonably satisfactory to Administrative Agent and its counsel.
13.5 SURVIVAL. All covenants, agreements, undertakings,
representations, and warranties made in any of the Loan Documents shall survive
all closings under the Loan Documents and, except as otherwise indicated, shall
not be affected by any investigation made by any party. All rights of, and
provisions relating to, reimbursement and indemnification of Administrative
Agent, any Agent, or any Lender (and any other provision of the Loan Documents
that expressly provides for such survival) shall survive termination of this
Agreement and payment in full of the Obligation.
13.6 GOVERNING LAW. THE LOAN DOCUMENTS HAVE BEEN ENTERED INTO PURSUANT
TO SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW AND THE SUBSTANTIVE
LAWS OF THE STATE OF
NEW YORK (EXCEPT TO THE EXTENT THE LAWS OF ANOTHER
JURISDICTION GOVERN THE CREATION, PERFECTION, VALIDITY, OR ENFORCEMENT OF LIENS
UNDER THE FOREIGN STOCK PLEDGES OR TO THE EXTENT THE LAW OF ANOTHER JURISDICTION
IS EXPRESSLY ELECTED IN A LOAN DOCUMENT), AND THE APPLICABLE FEDERAL LAWS OF THE
UNITED STATES OF AMERICA
57 ACS CREDIT AGREEMENT
SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF THE
LOAN DOCUMENTS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
13.7 INVALID PROVISIONS. If any provision in any Loan Document is held
to be illegal, invalid, or unenforceable, such provision shall be fully
severable; the appropriate Loan Document shall be construed and enforced as if
such provision had never comprised a part thereof; and the remaining provisions
thereof shall remain in full force and effect and shall not be affected by such
provision or by its severance therefrom. Administrative Agent, Lenders, and each
Loan Party party to such Loan Document agree to negotiate, in good faith, the
terms of a replacement provision as similar to the severed provision as may be
possible and be legal, valid, and enforceable.
13.8 ENTIRETY. THE RIGHTS AND OBLIGATIONS OF EACH LOAN PARTY, LENDERS,
AND AGENTS SHALL BE DETERMINED SOLELY FROM WRITTEN AGREEMENTS, DOCUMENTS, AND
INSTRUMENTS, AND ANY PRIOR ORAL AGREEMENTS BETWEEN SUCH PARTIES ARE SUPERSEDED
BY AND MERGED INTO SUCH WRITINGS. THIS AGREEMENT (AS AMENDED IN WRITING FROM
TIME TO TIME) AND THE OTHER WRITTEN LOAN DOCUMENTS EXECUTED BY ANY LOAN PARTY,
ANY LENDER, AND/OR ANY AGENT, (TOGETHER WITH ALL COMMITMENT LETTERS AND FEE
LETTERS AS THEY RELATE TO THE PAYMENT OF FEES AFTER THE CLOSING DATE) REPRESENT
THE FINAL AGREEMENT BETWEEN THE LOAN PARTIES, LENDERS, AND AGENTS, AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS BY SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN SUCH
PARTIES.
13.9 JURISDICTION; VENUE; SERVICE OF PROCESS; JURY TRIAL. EACH PARTY
HERETO (INCLUDING EACH BORROWER AND EACH OTHER LOAN PARTY BY EXECUTION OF
SUPPLEMENTAL AGREEMENTS TO THE LOAN DOCUMENTS, A GUARANTY, OR A FOREIGN STOCK
PLEDGE), IN EACH CASE FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, HEREBY (A)
IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE STATE (PURSUANT TO
SECTION 5-1402 OF THE
NEW YORK GENERAL OBLIGATIONS LAW) AND FEDERAL COURTS
LOCATED IN THE BOROUGH OF MANHATTAN IN THE STATE OF
NEW YORK, AND AGREES AND
CONSENTS THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY LEGAL PROCEEDING
ARISING OUT OF OR IN CONNECTION WITH THE LOAN DOCUMENTS AND THE OBLIGATION BY
SERVICE OF PROCESS AS PROVIDED BY
NEW YORK LAW, (B) IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY LITIGATION ARISING OUT OF OR IN CONNECTION
WITH THE LOAN DOCUMENTS AND THE OBLIGATION BROUGHT IN ANY SUCH COURT, (C)
IRREVOCABLY WAIVES ANY CLAIMS THAT ANY LITIGATION BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM, (D) AGREES TO DESIGNATE AND MAINTAIN AN
AGENT FOR SERVICE OF PROCESS IN NEW YORK IN CONNECTION WITH ANY SUCH LITIGATION
AND TO DELIVER TO ADMINISTRATIVE AGENT EVIDENCE THEREOF, IF REQUESTED; PROVIDED,
HOWEVER, THAT THIS CLAUSE (D) IS LIMITED TO THE LOAN PARTIES, (E) IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH LITIGATION BY THE MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, POSTAGE PREPAID, AT ITS ADDRESS SET FORTH HEREIN, (F)
IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING AGAINST ANY PARTY HERETO ARISING
OUT OF OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE OBLIGATION MAY BE BROUGHT
IN ONE OF THE AFOREMENTIONED COURTS, AND (G) IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED THEREBY. The scope of each of the foregoing waivers 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. The Loan Parties and each other party to
the Loan Documents acknowledge that this waiver is a material inducement to the
agreement of each party hereto to enter into
58 ACS CREDIT AGREEMENT
a business relationship, that each has already relied on this waiver in entering
into the Loan Documents, and each will continue to rely on each of such waivers
in related future dealings. The Loan Parties and each other party to the Loan
Documents warrant and represent that they have reviewed these waivers with their
legal counsel, and that they knowingly and voluntarily agree to each such waiver
following consultation with legal counsel. THE WAIVERS IN THIS SECTION 13.9 ARE
IRREVOCABLE, MEANING THAT THEY MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THESE WAIVERS SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS, AND
REPLACEMENTS TO OR OF THIS OR ANY OTHER LOAN DOCUMENT. In the event of
Litigation, this Agreement may be filed as a written consent to a trial by the
court.
13.10 AMENDMENTS, CONSENTS, CONFLICTS, AND WAIVERS.
(a) Except as otherwise specifically provided, (i) this
Agreement may only be amended, modified, or waived by an instrument in
writing executed jointly by Borrowers and Required Lenders, and, in the
case of any matter affecting Administrative Agent (except removal of
Administrative Agent as provided in SECTION 12) by Administrative
Agent, and, in the case of any matter affecting LC Issuers by LC
Issuers, and may only be supplemented by documents delivered or to be
delivered in accordance with the express terms hereof, and (ii) the
other Loan Documents may only be the subject of an amendment,
modification, or waiver if Borrowers and Required Lenders, and, in the
case of any matter affecting Administrative Agent (except as set forth
above), Administrative Agent, have approved same.
(b) Any amendment to or consent or waiver under any Loan
Document which purports to accomplish any of the following must be by
an instrument in writing executed by Borrowers and executed (or
approved, as the case may be) by each Lender affected thereby, and, in
the case of any matter affecting Administrative Agent, by
Administrative Agent: (i) postpones or delays any date fixed by the
Loan Documents for any payment or mandatory prepayment of all or any
part of the Obligation payable to such Lender or Administrative Agent;
(ii) reduces the interest rate or decreases the amount of any payment
of principal, interest, fees, or other sums payable to Administrative
Agent or any such Lender hereunder (except such reductions as are
contemplated by this Agreement); (iii) changes the definitions of
"REQUIRED LENDERS", "PRO RATA", OR "PRO RATA PART"; (iv) changes the
order of application of any payment or prepayment set forth in SECTIONS
3.3 and 3.12 in any manner that materially affects such Lender or
Administrative Agent; (v) except as otherwise permitted by any Loan
Document, waives compliance with, amends, or releases all or
substantially all of the Guaranties or the Collateral or releases ACS
as a Borrower hereunder; (vi) increases the Maximum Revolver
Commitment; or (vii) changes this CLAUSE (b) or any other matter
specifically requiring the consent of all Lenders hereunder.
(c) Any amendment to increase any Lender's Committed Sum
pursuant to SECTION 2.4 or otherwise or to add any new Lender pursuant
to SECTION 2.4 or otherwise shall be executed by Borrowers and the
particular existing or new Lender.
(d) Any conflict or ambiguity between the terms and provisions
of this Agreement and terms and provisions in any other Loan Document
shall be controlled by the terms and provisions herein.
(e) No course of dealing nor any failure or delay by
Administrative Agent, any Lender, or any of their respective
Representatives with respect to exercising any Right of Administrative
Agent or any Lender hereunder shall operate as a waiver thereof. A
waiver must be in writing and signed by Administrative Agent and
Required Lenders (or by all Lenders, if
59 ACS CREDIT AGREEMENT
required hereunder) to be effective, and such waiver will be effective
only in the specific instance and for the specific purpose for which it
is given.
13.11 MULTIPLE COUNTERPARTS. The Loan Documents may be executed in a
number of identical counterparts, each of which shall be deemed an original for
all purposes and all of which constitute, collectively, one agreement; but, in
making proof of any Loan Document, it shall not be necessary to produce or
account for more than one such counterpart. It is not necessary that each Lender
execute the same counterpart so long as identical counterparts are executed by
each Borrower, each Lender, and Administrative Agent. This Agreement shall
become effective when counterparts hereof shall have been executed and delivered
to Administrative Agent by each Lender, Administrative Agent, and each Borrower,
or, when Administrative Agent shall have received telecopied, telexed, or other
evidence satisfactory to it that such party has executed and is delivering to
Administrative Agent a counterpart hereof.
13.12 SUCCESSORS AND ASSIGNS; ASSIGNMENTS AND PARTICIPATIONS.
(a) This Agreement shall be binding upon, and inure to the
benefit of the parties hereto and their respective successors and
assigns, except that (i) no Borrower may, directly or indirectly,
assign or transfer, or attempt to assign or transfer, any of its
Rights, duties, or obligations under any Loan Documents without the
express written consent of all Lenders, and (ii) except as permitted
under this Section, no Lender may transfer, pledge, assign, sell any
participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees
all or a portion of its Rights and obligations under the Loan Documents
(including, without limitation, all or a portion of its Borrowings and
its Notes -- to the extent any Principal Debt owed to such assigning
Lender is evidenced by a Note or Notes); provided, however, that:
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender or an Affiliate of Lender, or in the case of an
assignment of all of a Lender's Rights and obligations under
the Loan Documents, any such partial assignment under the
Revolver Facility shall not be less than $5,000,000 (unless
Administrative Agent and, unless a Default or Potential
Default has occurred and is continuing, ACS consents thereto
(in their sole discretion) in writing which may be evidenced
by their acceptance and execution of the related Assignment
and Acceptance Agreement), provided that, no partial
assignment (including any assignment among Lenders) may result
in any Lender holding less than $5,000,000.
(iii) each such assignment by a Lender shall be of a
proportionate part of all of the assigning Lender's Rights and
obligations under this Agreement and the Notes (to the extent
any Principal Debt owed to such assigning Lender is evidenced
by a Note or Notes);
(iv) the parties to such assignment shall execute and
deliver to Administrative Agent for its acceptance an
Assignment and Acceptance Agreement in the form of EXHIBIT E
hereto ("ASSIGNMENT AND ACCEPTANCE"), together with any Notes
(to the extent any Principal Debt owed to such assigning
Lender is evidenced by a Note or Notes) subject to such
assignment and a processing fee of $3,500 (which fee shall be
payable by the parties to such Assignment and Acceptance and
is not part of the Obligation), including, without limitation,
any assignment between Lenders; and
60 ACS CREDIT AGREEMENT
(v) so long as any Lender is an Agent under this
Agreement, such Lender (or an Affiliate of such Lender) shall
retain an economic interest in the Loan Documents, will not
assign all of its Rights, duties, or obligations under the
Loan Documents, except to an Affiliate of such Lender, and
will not enter into any Assignment and Acceptance that would
have the effect of such Lender assigning all of its Rights,
duties, or obligations under the Loan Documents to any Person
other than an Affiliate of such Lender unless such Agent has
relinquished such title in accordance with SECTION 12.1 (with
respect to Administrative Agent) or SECTION 12.10 (with
respect to the other Agents).
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, Rights, and benefits
of a Lender under the Loan Documents and the assigning Lender shall, to
the extent of such assignment, relinquish its Rights and be released
from its obligations under the Loan Documents. Upon the consummation of
any assignment pursuant to this Section, but only upon the request of
the assignor or assignee made through Administrative Agent, Borrowers
shall issue appropriate Notes to the assignor and the assignee,
reflecting such Assignment and Acceptance. If the assignee is not
incorporated under the laws of the United States of America or a state
thereof, it shall deliver to Borrowers and Administrative Agent
certification as to exemption from deduction or withholding of Taxes in
accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address
referred to in SECTION 13.3 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Commitment Percentage
of, Committed Sum of, and Principal Debt owing to, each Lender from
time to time (the "REGISTER"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and
Borrowers, Administrative Agent, and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all
purposes of the Loan Documents. The Register shall be available for
inspection by Borrowers, or any Lender at any reasonable time and from
time to time upon reasonable prior notice. Upon the consummation of any
assignment in accordance with this SECTION 13.12, SCHEDULE 2.1 shall
automatically be deemed amended (to the extent required) by
Administrative Agent to reflect the name, address, and, where
appropriate, respective Committed Sum of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance executed
by the parties thereto, together with any Notes (to the extent any
Principal Debt owed to such assigning Lender is evidenced by a Note or
Notes) subject to such assignment and payment of the processing fee,
Administrative Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of EXHIBIT E hereto, (i)
accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register, and (iii) give prompt notice thereof
to the parties thereto.
(e) Subject to the provisions of this Section and in
accordance with applicable Law, any Lender may, in the ordinary course
of its commercial banking business and in accordance with applicable
Law, at any time sell to one or more Persons (each a "PARTICIPANT")
participating interests in its portion of the Obligation. In the event
of any such sale to a Participant, (i) such Lender shall remain a
"Lender" under the Loan Documents and the Participant shall not
constitute a "Lender" hereunder, (ii) such Lender's obligations under
the Loan Documents shall remain unchanged, (iii) such Lender shall
remain solely responsible for the performance thereof, (iv) such Lender
shall remain the holder of its share of the Principal Debt for all
purposes under the Loan Documents, (v) Borrowers and Administrative
Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's Rights and obligations under the Loan
Documents, and (vi) such Lender shall be solely responsible for any
withholding taxes or
61 ACS CREDIT AGREEMENT
any filing or reporting requirements relating to such participation and
shall hold Borrowers and Administrative Agent and their respective
successors, permitted assigns, officers, directors, employees, agents,
and representatives harmless against the same. Participants shall have
no Rights under the Loan Documents, other than certain voting Rights as
provided below. Subject to the following, each Lender shall be entitled
to obtain (on behalf of its Participants) the benefits of SECTION 4
with respect to all participations in its part of the Obligation
outstanding from time to time, so long as Borrowers shall not be
obligated to pay any amount in excess of the amount that would be due
to such Lender under SECTION 4 calculated as though no participations
have been made. No Lender shall sell any participating interest under
which the Participant shall have any Rights to approve any amendment,
modification, or waiver of any Loan Document, except to the extent such
amendment, modification, or waiver extends the due date for payment of
any amount in respect of principal (other than mandatory prepayments,
if any), interest, or fees due under the Loan Documents, reduces the
interest rate or the amount of principal or fees applicable to the
Obligation (except such reductions as are contemplated by the Loan
Documents), or releases all or any substantial portion of the
Guaranties or all or any substantial portion of the Collateral for the
Obligation under the Loan Documents (except such releases of Guaranties
or Collateral as are contemplated in SECTION 6.2 or otherwise permitted
by the Loan Documents); provided that, in those cases where a
Participant is entitled to the benefits of SECTION 4 or a Lender grants
Rights to its Participants to approve amendments to or waivers of the
Loan Documents respecting the matters previously described in this
sentence, such Lender must include a voting mechanism in the relevant
participation agreement or agreements, as the case may be, whereby a
majority of such Lender's portion of the Obligation (whether held by
such Lender or Participant) shall control the vote for all of such
Lender's portion of the Obligation. Except in the case of the sale of a
participating interest to another Lender, the relevant participation
agreement shall not permit the Participant to transfer, pledge, assign,
sell participations in, or otherwise encumber its portion of the
Obligation, unless the consent of the transferring Lender (which
consent will not be unreasonably withheld) has been obtained.
(f) Notwithstanding any other provision set forth in this
Agreement, any Lender may, without notice to, or the consent of any
Borrower or Administrative Agent, at any time assign and pledge all or
any portion of its Borrowings and its Notes (to the extent any
Principal Debt owed to such assigning Lender is evidenced by a Note or
Notes) to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve
Bank or any Lender which is a fund may pledge all or any portion of its
Borrowings and its Notes (to the extent any Principal Debt owed to such
assigning Lender is evidenced by a Note or Notes) to its trustee in
support of its obligations to its trustee. No such assignment shall
release the assigning Lender from its obligations hereunder.
13.13 DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. The obligations of each Loan Party under the Loan Documents shall
remain in full force and effect until termination of the Revolver Commitment,
payment in full of the Principal Debt and of all interest, fees, and other
amounts of the Obligation then due and owing, and expiration of all LCs, except
that SECTIONS 4, 11, and 13, and any other provisions under the Loan Documents
expressly intended to survive by the terms hereof or by the terms of the
applicable Loan Documents, shall survive such termination. Upon the termination
of the Revolver Commitment, payment in full of the Principal Debt and of all
interest, fees, and other amounts of the Obligation then due and owing, and the
expiration of all LCs, all Liens granted by the Loan Parties which secure the
Obligation shall automatically be released and shall terminate without any
further action of any Person, and Administrative Agent shall promptly thereafter
return to ACS all stock certificates and other investment property which
evidences Collateral that it possesses. If at any time any payment of the
principal of or interest on any Note or any other amount payable by Borrowers
under any Loan Document is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy, or reorganization of any Borrower or otherwise,
the obligations of each
62 ACS CREDIT AGREEMENT
Loan Party under the Loan Documents with respect to such payment shall be
reinstated as though such payment had been due but not made at such time.
13.14 CONFIDENTIALITY. Each of Administrative Agent and Lenders agrees
to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates' directors,
officers, employees, and agents, including accountants, legal counsel, and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential); (b) to the extent requested by any
regulatory authority; (c) to the extent required by applicable Laws or
regulations or by any subpoena or similar legal process; (d) to any other party
to this Agreement; (e) in connection with the exercise of any Rights hereunder
or any suit, action, or proceeding relating to this Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any Eligible Assignee of
or Participant in, or any prospective Eligible Assignee of or Participant in,
any of its Rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any financial hedge or credit derivative transaction relating to obligations
of the Loan Parties or to any securitization of the Obligation; (g) with the
consent of Borrowers; (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to Administrative Agent or any Lender on a nonconfidential basis from
a source other than any Loan Party. In addition, Administrative Agent and the
Lenders may disclose the existence of this Agreement and information about this
Agreement to market data collectors, similar service providers to the lending
industry, and service providers to Administrative Agent and the Lenders in
connection with the administration and management of this Agreement, the other
Loan Documents, the Commitment, and the Borrowing. For the purposes of this
Section, "INFORMATION" means all information received from any Company relating
to any Company or its business, properties, assets, prospects, financial
condition, or operations, other than any such information that is publicly
available to Administrative Agent or any Lender prior to disclosure by any Loan
Party. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
13.15 DESIGNATED SENIOR INDEBTEDNESS. ACS hereby designates the
Obligation as "Designated Senior Indebtedness" under ACS's 3.5% Convertible
Subordinated Notes Due February 15, 2006, in the principal amount of
$316,990,000.
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63 ACS CREDIT AGREEMENT
