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EXHIBIT 10.4
FIRST AMENDMENT TO MULTI-CURRENCY
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This FIRST AMENDMENT TO MULTI-CURRENCY REVOLVING CREDIT AND TERM LOAN
AGREEMENT (the "First Amendment") is made as of June 29, 1997 by and among each
of the Borrowers named herein on the signature pages hereof (individually, a
"Borrower" and collectively, the "Borrowers"), American Management Systems,
Incorporated, as guarantor (the "Guarantor"), each of the lenders named herein
on the signature pages hereof (individually, a "Lender" and collectively, the
"Lenders"), Wachovia Bank, N.A., formerly Wachovia Bank of Georgia, N.A., as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent") and NationsBank, N.A., as documentation agent for the Lenders (in such
capacity, the "Documentation Agent") (each of the Administrative Agent and the
Documentation Agent, an "Agent" or collectively, the "Agents").
The Borrowers, the Guarantor, the Lenders and the Agents are parties
to a Multi-Currency Revolving Credit and Term Loan Agreement dated as of
December 24, 1996 (the "Agreement"); the Borrowers and the Guarantor have
requested that the Lenders and the Agents amend certain provisions of the
Agreement; and the Borrowers, the Guarantor, the Lenders and the Agents desire
to amend the Agreement as herein provided. Capitalized terms used herein and
not defined herein shall have the meanings ascribed to them in the Agreement.
ACCORDINGLY, the Borrowers, the Guarantor, the Lenders and the Agents
agree as follows:
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1. APPLICABLE RATE. The definition of "Applicable Rate" in
Section 1.1 of the Agreement shall be amended by substituting the following
matrix for the existing matrix:
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Total Debt: EBITDA Eurocurrency Rate Margin Facility Fee LC Fee
(basis points per annum) (basis points per annum) (basis points per annum)
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Less than or equal to 1.0 15 7.5 35.0
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Greater than 1.0 but less 22.5 10.0 45.0
than or equal to 1.25
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Greater than 1.25 but less than 25.0 15.0 50.0
or equal to 1.50
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Greater than 1.50 but less than 32.0 18.0 55.0
or equal to 2.0
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Greater than 2.0 40.0 25.0 70.0
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2. FIXED CHARGE COVERAGE RATIO. Subsection 6.2(b) of the
Agreement shall be amended to read as follows:
(b) Fixed Charge Coverage Ratio: Maintain a ratio of
EBILTDA to Interest and Lease Charges of not less than (i)
2.25 to 1.0 as of June 30, 1997, (ii) 2.30 to 1.0 as of
September 30, 1997 and (iii) 2.50 to 1.0 as of the last day of
each fiscal quarter thereafter, calculated in all cases for
the four fiscal quarters ending on such date.
3. ACKNOWLEDGMENT OF GUARANTOR. The Guarantor reaffirms its
obligations under the Guaranty and consents to this First Amendment.
4. REPRESENTATIONS AND WARRANTIES. Each Borrower represents and
warrants to the Agents and each Lender as follows:
4.1 EXISTENCE. Each of the Borrower and its Subsidiaries
is a corporation or partnership duly organized, validly existing and in good
standing under the Laws of the nation in which it is organized and any
political subdivision thereof, and is duly qualified to do business
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and in good standing in each other nation and any political subdivision thereof
where the nature or extent of its business activities requires such
qualification, except where the failure to be so qualified and in good standing
could not reasonably be expected to have a Materially Adverse Effect.
4.2 POWER AND AUTHORITY. Each of the Borrower and its
Subsidiaries has all requisite power and authority to own or lease its
properties, conduct its business as now conducted and to execute and deliver
the First Amendment and to perform the Agreement as amended hereby.
4.3 AUTHORIZATION AND ENFORCEABILITY. The execution,
delivery and performance of the First Amendment have been duly authorized by
all necessary corporate or partnership action of each of the Borrower and its
Subsidiaries and require no consent of any Person which has not been obtained,
and the First Amendment constitutes and the Agreement as amended hereby
constitutes valid and binding obligations of each of the Borrower and its
Subsidiaries party thereto, enforceable in accordance with their respective
terms, except as such enforceability may be limited by Debtor Relief Laws and
by general principles of equity.
4.4 NO VIOLATION. The execution, delivery and
performance of the First Amendment does not and will not violate any Borrower's
or any of its Subsidiaries' charter, bylaws, partnership agreement or other
organizational documents, any Laws applicable to such Borrower or any of its
Subsidiaries or any agreement to which such Borrower or any of its Subsidiaries
is a party or by which such Borrower or any of its Subsidiaries is bound,
except for
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violations of Laws or agreements which could not reasonably be expected to have
a Materially Adverse Effect.
4.5 NO DEFAULT. As of the date of this First Amendment,
no Default Condition or Event of Default has occurred and is continuing under
the Agreement which has not been waived.
5. CONDITIONS PRECEDENT. This First Amendment shall not be
effective until such time as each of the following conditions is satisfied:
5.1 DOCUMENTS. Each of the parties hereto has executed
the First Amendment.
5.2 AMENDMENT FEE. AMS shall have paid to the
Administrative Agent for the account of the Lenders an amendment fee equal to
$60,000.
6. COST OF EXPENSES. AMS shall pay all costs, fees and expenses
of the Agents incident to this First Agreement, including the reasonable fees,
out-of-pocket expenses and other disbursements of Mays & Valentine, L.L.P.,
counsel for the Agents, in connection with this Amendment.
7. REAFFIRMATION. Except as otherwise expressly amended by this
First Amendment, the Agreement is and shall continue to be in full force and
effect in accordance with its terms. The parties hereto further agree that
each reference in any Loan Document to the "Agreement" shall be deemed to refer
to the Agreement as amended by this First Amendment and as it may be amended
from time to time hereafter.
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8. MISCELLANEOUS.
8.1 GOVERNING LAW. This First Amendment shall be
governed by, and construed and interpreted in accordance with, the laws of the
State of New York.
8.2 NO NOVATION. The transactions described herein do
not constitute, and should not be construed to be, a novation of any
indebtedness outstanding under the Agreement.
8.3 WAIVER. Any waiver of a provision of a Loan Document
accomplished by this First Amendment shall be effective only in the specific
instance for which it is granted, shall not constitute a waiver of any other
provison of a Loan Document and shall not constitute an undertaking or
agreement to waive any provision of a Loan Document in the future.
8.4 SUCCESSORS AND ASSIGNS. This First Amendment shall
be binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and permitted assigns.
8.5 INVALIDITY. If any provision of this First Amendment
shall be held invalid by any court of competent jurisdiction, such holding
shall not invalidate any other provision hereof.
8.6 COUNTERPARTS. This First Amendment may be executed
in several counterparts, each of which shall be an original and all of which
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, each Borrower, the Guarantor, the Administrative
Agent, the Documentation Agent and each Lender have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
AMERICAN MANAGEMENT
SYSTEMS, INCORPORATED,
as Borrower and Guarantor
BY: /s/ FRANK A. NICOLAI
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NAME: Frank A. Nicolai
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TITLE: Secretary and Treasurer
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AMS MANAGEMENT SYSTEMS
DEUTSCHLAND GMBH,
as Borrower
BY: /s/ FRANK A. NICOLAI
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NAME: Frank A. Nicolai
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TITLE: Director
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AMS MANAGEMENT SYSTEMS
EUROPE S.A./N.V.,
as Borrower
BY: /s/ FRANK A. NICOLAI
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NAME: Frank A. Nicolai
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TITLE: Director
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AMS MANAGEMENT SYSTEMS U.K. LTD.,
as Borrower
BY: /s/ FRANK A. NICOLAI
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NAME: Frank A. Nicolai
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TITLE: Director
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AMS MANAGEMENT SYSTEMS CANADA
INC.,
as Borrower
BY: /s/ FRANK A. NICOLAI
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NAME: Frank A. Nicolai
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TITLE: Director
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AMS MANAGEMENT SYSTEMS
NETHERLANDS, B.V,
as Borrower
BY: /s/ FRANK A. NICOLAI
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NAME: Frank A. Nicolai
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TITLE: Director
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NORDIC BUSINESS MANAGEMENT
SYSTEMS AB,
as Borrower
BY: /s/ FRANK A. NICOLAI
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NAME: Frank A. Nicolai
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TITLE: Director
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AMS MANAGEMENT SYSTEMS
AUSTRALIA PTY. LIMITED
as Borrower
BY: /s/ FRANK A. NICOLAI
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NAME: Frank A. Nicolai
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TITLE: Director
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AMS MANAGEMENT SYSTEMS
(SWITZERLAND) AG
as Borrower
BY: /s/ FRANK A. NICOLAI
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NAME: Frank A. Nicolai
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TITLE: Authorized Signatory
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AMS MANAGEMENT SYSTEMS ITALIA
S.P.A.
as Borrower
BY: /s/ FRANK A. NICOLAI
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NAME: Frank A. Nicolai
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TITLE: Director
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AMS MANAGEMENT SYSTEMS
ESPANA, S.A.
as Borrower
BY: /s/ FRANK A. NICOLAI
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NAME: Frank A. Nicolai
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TITLE: Director
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COMMONWEALTH OF VIRGINIA
City/County of Fairfax
The foregoing instrument was acknowledged before me in my jurisdiction
aforesaid this 11th day July, 1997 by Frank A. Nicolai, who is Director of
AMS Management Systems Espana, S.A., for and on behalf of the corporation.
/s/ JOSEPHINE METRESS
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Notary Public
My commission expires: March 31, 2001
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WACHOVIA BANK, N.A., formerly
Wachovia Bank of North Carolina, N.A.
By: /s/ WRAY C. BROUGHTON
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Its: Vice President
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NATIONSBANK, N.A.
By: /s/ ELIZABETH S. DUFF
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Its: Elizabeth S. Duff
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Vice President
COMMERZBANK AG,
NEW YORK BRANCH
By: /s/ PETER T. DOYLE By: /s/ ROBERT J. DONOHUE
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Its: PETER T. DOYLE Its: Robert J Donohue
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ASSISTANT TREASURER Vice President
NATIONSBANK, N.A.,
as Documentation Agent
By: /s/ ELIZABETH S. DUFF
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Its: Elizabeth S. Duff
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Vice President
WACHOVIA BANK, N.A., formerly
Wachovia Bank of Georgia, N.A., as
Administrative Agent
By: /s/ ELIZABETH A. DREILING
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Its: Elizabeth A. Dreiling
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ASSISTANT VICE PRESIDENT
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