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EXHIBIT 10.1
Amendment No. 4, Consent and
Waiver
to and under
Credit Agreement
This
Amendment No. 4, Consent and Waiver, dated as of
December 18, 2006 (this " Amendment "), to and under
the Credit Agreement, dated as of March 20, 2006 (as amended,
including by this Amendment, the " Credit Agreement "),
among Affiliated Computer Services, Inc., a Delaware corporation
(the " Company "), ACS Commercial Solutions, Inc., a Nevada
corporation, ACS Education Services, Inc., a Delaware corporation,
ACS Enterprise Solutions, Inc., a Delaware corporation, ACS HR
Solutions, LLC, a Pennsylvania limited liability company, ACS
Outsourcing Solutions, Inc., a Michigan corporation, ACS State
& Local Solutions, Inc., a New York corporation, ACS State
Healthcare, LLC, a Delaware limited liability company, ACS TradeOne
Marketing, Inc., a Delaware corporation, Buck Consultants, LLC, a
Delaware limited liability company, ACS Worldwide Lending Limited,
a limited company organized under the laws of England and Wales,
and each other Subsidiary Borrower party thereto from time to time,
the Lenders and Issuers party thereto from time to
time, and Citicorp USA, Inc. (" Citicorp "), as
administrative agent (in such capacity, the " Administrative
Agent "). Unless otherwise specified herein, all capitalized
terms used in this Amendment shall have the meanings ascribed to
them in the Credit Agreement.
WITNESSETH
WHEREAS,
in connection with the investigation relating to the
Company’s historical stock option practices as disclosed in
the Company’s press release dated August 7, 2006
(including the matters disclosed in the Company’s press
release dated November 27, 2006, the " Options Matter
"), the Company has requested a waiver of certain covenants under
the Credit Agreement and certain amendments to the Credit Agreement
as herein set forth;
WHEREAS,
the Company, each of the Lenders signatory to an acknowledgment and
consent, in the form set forth as Exhibit A (an "
Acknowledgment and Consent "), and the Administrative Agent
have agreed to such waiver and amendments on the terms and subject
to the conditions herein provided.
NOW,
THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION
1. Consent and Waiver .
(a) As
of the Effective Date, the Administrative Agent and each Lender
signatory to an Acknowledgment and Consent hereby (i) consent
to (A) the delivery of the Financial Statements required by
Section 6.1(a) ( Quarterly Reports ) and the
related Compliance Certificate required by
Section 6.1(c) ( Compliance Certificate ) for
the Fiscal Quarter ended June 30, 2006 and the Fiscal Quarter
ended September 30, 2006, on or prior to February 14,
2007, and (B) the delivery of the Financial Statements and
related accountant’s report required by
Section 6.1(b) ( Annual Reports ) and the
related Compliance Certificate required by
Section 6.1(c) ( Compliance Certificate ) for
the Fiscal Year ended June 30, 2006, on or prior to
February 14, 2007 and (ii) waive any Default or Event
of
Default (x) arising from the Company’s failure to
comply with Section 6.1(a) ( Quarterly Reports )
, Section 6.1(b) ( Annual Reports ) or
Section 6.1(c) ( Compliance Certificate ) (all
such financial statements, reports and certificates being the "
Delayed Reports "); provided that, in each case, the
failure to deliver each of the Delayed Reports within the
applicable time period provided by the Credit Agreement shall have
resulted directly or indirectly from the Options Matter.
(b) The
Administrative Agent and each Lender signatory to an Acknowledgment
and Consent hereby waive any Default or Event of Default under
Section 9.1(c) ( Events of Default ) solely to
the extent that the representations or warranties made or deemed to
have been made pursuant to Section 4.4(a) (
Financial Statements ), Section 4.9 ( Full
Disclosure ), Section 6.1(a) ( Quarterly
Reports ) or Section 6.1(e) ( Business Plan
) shall prove to have been incorrect when made or deemed to have
been made as a result of a restatement, adjustment or other
modification of the Financial Statements delivered to the
Administrative Agent prior to the Effective Date; provided
that such restatement, adjustment or other modification shall have
resulted directly or indirectly from the Options Matter.
(c) The
Administrative Agent and each Lender signatory to an Acknowledgment
and Consent hereby waive any Default or Event of Default under
Section 9.1(e) ( Events of Default ), arising
from the Company’s or any other Group Member’s failure
to comply with similar reporting covenants under any other
Indebtedness (including any requirement to file any report with the
SEC or to furnish such report to the holders of such Indebtedness)
(collectively, " Similar Reporting Covenants ");
provided that (i) such failure to comply shall have
resulted directly or indirectly from the Options Matter and
(ii) the Company and/or such other Group Member, as
applicable, shall have delivered all reports and all other
statements required by each such Similar Reporting Covenant on or
prior to February 14, 2007.
(d) Except
as expressly provided in clauses (a), (b) and (c) above,
nothing contained in this Amendment shall be construed as a waiver
of any Default or Event of Default under the Credit Agreement or
any other Loan Document.
(e) Notwithstanding
the Applicable Margin with respect to Revolving Loans or Applicable
Unused Commitment Fee Rate that would otherwise be in effect, from
and after the Effective Date and through the earlier of
(x) February 14, 2007 and (y) the date that any of
the Delayed Reports have been delivered to the Administrative Agent
in accordance with the requirements set forth in the Credit
Agreement (as amended by this Amendment) (the " Modification
Termination Date "), (i) " Applicable Margin " shall
mean with respect to Revolving Loans maintained as (1) Base
Rate Loans, a rate equal to 0.25% per annum and
(2) Eurocurrency Rate Loans, a rate equal to 1.25% per
annum and (ii) " Applicable Unused Commitment Fee Rate "
shall mean 0.375% per annum . Commencing on the Modification
Termination Date, " Applicable Margin " and " Applicable
Unused Commitment Fee Rate " shall each revert to the
definition set forth in the Credit Agreement without giving effect
to this Section 1(e) and from and after the Modification
Termination Date, this Amendment shall cease to be of further force
and effect with respect to any Delayed Report that has been
delivered.
(f) Promptly,
but in any event within 10 Business Days after delivery of the
Financial Statements for the Fiscal Year ended June 30, 2006,
the Company shall furnish to the Administrative Agent an update of
the Projections delivered by it in accordance with
Section 6.1(e) ( Business Plan ).
2
SECTION
2. Amendments . Subject to the terms and conditions set
forth herein, effective as of the Effective Date, the Credit
Agreement (together with the Exhibits and Schedules thereto) is
hereby amended as follows:
(a)
Section 1.1 (Defined Terms) of the Credit Agreement is
hereby amended by inserting the following definitions among the
existing definitions set forth in such Section in alphabetical
order:
"
Permitted Unsecured Debt " means unsecured Indebtedness of
the Company which (a) has a maturity date no earlier than six
months after the later of (i) the Term Loan Maturity Date and
(ii) the final maturity date applicable to any Facility
Increase outstanding at the time such Indebtedness is incurred,
(b) has market interest rates and fees, (c) has no
financial covenants that are maintenance covenants, (d) has no
covenants or events of default that are more restrictive than those
in the Loan Documents, (e) does not require any funds to be
set aside for any redemption, retirement, termination,
cancellation, purchase or other acquisition of such Indebtedness,
whether directly or indirectly and whether to a sinking fund, a
similar fund or otherwise and (f) if such Indebtedness is
subordinated to the Obligations, is subordinated to the Obligations
on terms and conditions reasonably satisfactory to the
Administrative Agent .
(b)
Section 4.13(b) ( Use of Proceeds ) of the
Credit Agreement is hereby deleted in its entirety and replaced
with the following:
(b)
The proceeds of the Revolving Loans and the Letters of Credit are
being used by each Revolving Credit Borrower (and, to the extent
distributed to them by such Borrower, each Group Member) solely
(i) to refinance all Indebtedness and other obligations
outstanding under the Existing Credit Agreement, (ii) for the
payment of transaction costs, fees and expenses incurred in
connection with this Agreement and the transactions contemplated
hereby, (iii) for working capital and general corporate
purposes for itself or any of its Subsidiaries and (iv) to
finance Permitted Acquisitions; provided , however ,
that the Revolving Credit B
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