FIRST AMENDMENT
FIRST
AMENDMENT
THIS FIRST AMENDMENT (this “Amendment”) dated as
of December 11, 2008 to the Credit Agreement referenced below is by and among
the Borrowers identified on the signature pages hereto (the “Borrowers”), the
Guarantors identified on the signature pages hereto (the “Guarantors”), the
Lenders identified on the signature pages hereto and Bank of America, N.A., as
Administrative Agent (in such capacity, the “Administrative
Agent”).
WITNESSETH
WHEREAS, credit facilities have been
extended to the Borrowers pursuant to the Amended and Restated Credit Agreement
(as amended, modified, supplemented, increased and extended from time to time,
the “Credit
Agreement”) dated as of July 29, 2005 among the Borrowers, the Lenders
identified therein and the Administrative Agent;
WHEREAS, the Guarantors guaranteed the
obligations of the Borrowers under the Credit Agreement pursuant to the Guaranty
Agreements; and
WHEREAS, the Borrowers have requested
certain modifications to the Credit Agreement and all the Lenders have agreed to
the requested modifications on the terms and conditions set forth
herein.
NOW, THEREFORE, IN CONSIDERATION of the
premises and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
1. Defined
Terms. Capitalized terms used herein but not otherwise defined
herein shall have the meanings provided to such terms in the Credit
Agreement.
2.
Amendments. The
Credit Agreement is amended as follows:
2.1 The
definition of “Asset Coverage Ratio” in Section 1.1 is deleted.
2.2 The
definition of “Fixed Charge Coverage Ratio” in Section 1.1 is amended to read as
follows:
“Fixed Charge Coverage
Ratio” means the ratio of (a) EBITDA minus income tax expense, to (b) the
sum of interest expense, plus the current
portion of long term liabilities, plus capital
expenditures and plus Restricted
Payments paid in cash.
2.3 In
the definition of “Domestic Borrowers” in Section 1.1, the phrase “any other
Person that becomes a “Borrower” under the Domestic Credit Facility” is added
immediately prior to “and their successors and assigns”.
2.4 The
definition of “Maturity Date” in Section 1.1 is amended to read as
follows:
“Maturity Date” means
the later of (a) July 31, 2010 and (b) if maturity is extended pursuant to
Section 2.14,
such extended maturity date as determined pursuant to such Section 2.14.
2.5 The
definition of “Swing Line Sublimit” in Section 1.1 is amended to read as
follows:
“Swing Line Sublimit”
means an amount equal to ten percent (10%) of the Aggregate Commitments; provided that the
Borrowers may decrease and thereafter from time to time increase and decrease
the amount of the Swing Line Sublimit upon three Business Days prior written
notice from Micros to the Swing Line Lender and the Administrative Agent
provided that the amount of the Swing Line Sublimit shall not at any time exceed
ten percent (10%) of the Aggregate Commitments. The Swing Line
Sublimit is part of, and not in addition to, the Aggregate
Commitments.
2.6 The
following definitions are added to Section 1.1:
“Liquidity” means, as
of any date of determination, an amount equal to the sum of (a) the Aggregate
Commitments less the Total
Outstandings plus (b) cash and
cash equivalents of the Loan Parties plus (c) the Domestic
Credit Facility Agreement Commitments less the “Total
Outstandings” under, and as defined in, the Domestic Credit
Facility.
“Permitted
Acquisition” means an acquisition by a Borrower provided that (a) a
Borrower is the surviving entity, (b) in the case of an acquisition of the
equity interests of another Person, the board of directors (or other comparable
governing body) of such other Person shall have duly approved such acquisition,
(c) if the aggregate consideration for such acquisition exceeds $75 million,
Borrower shall have furnished financial projections to the Administrative Agent
in form and detail reasonably acceptable to the Administrative Agent
demonstrating that, after giving effect to such acquisition (and the incurrence
of any Debt in connection therewith) on a Pro Forma Basis Borrower would be in
compliance with the financial covenants set forth in Section 6.12 for each of
the next four fiscal quarters, and (d) after giving effect to such acquisition
(and the incurrence of any Debt in connection therewith) on a Pro Forma Basis
(i) no Default or Event of Default shall exist, (ii) the ratio of Total Funded
Debt (the aggregate of Domestic Debt and International Debt) to consolidated
EBITDA of MICROS and all foreign and domestic Affiliates shall not exceed
1.75:1.0 as of the end of the most recent fiscal quarter for which Borrower has
delivered financial statements pursuant to Section 6.1(a) or
(b), and (iii)
Liquidity exceeds $25 million.
“Pro Forma Basis”
means, with respect to any transaction (including, without limitation, any
Restricted Payment), that such transaction shall be deemed to have occurred as
of the first day of the most recent four fiscal quarter period preceding the
date of such transaction for which the Borrowers were required to deliver
financial statements pursuant to Section 6.1(a) or
(b).
2.7 Section
2.1(b) is amended to read as follows:
(b) The
Borrower may, at its option, not more than once per calendar quarter, elect to
increase the Aggregate Commitments, provided that (i) the Borrower shall give
ten (10) Business Days prior written notice to the Administrative Agent of such
election; (ii) the Borrower shall decrease the Domestic Credit Facility
Aggregate Commitments on a dollar for dollar basis concurrent with the effective
date of such increase; (iii) each of the conditions precedent set forth in
Section 4.2 shall be satisfied as of the effective date of such increase; (iv)
the aggregate amount of the Aggregate Commitments and the Domestic Credit
Facility Aggregate Commitments shall not exceed $65,000,000 (less (x) the amount
of any prior reduction in the Aggregate Commitments pursuant to Section 2.6 and
(y) the amount of any prior reduction in the Domestic Credit Facility Aggregate
Commitments pursuant to Section 2.6 of the credit agreement for the Domestic
Credit Facility); (v) such increase shall be in a minimum amount of $5,000,000
and in integral multiples of $1,000,000 in excess thereof; (vi) such requested
increase shall only be effective upon receipt by the Administrative Agent of (A)
additional Commitments in a corresponding amount of such increase from either
existing Lenders and/or one or more other institutions that qualify as Eligible
Assignees (it being understood and agreed that no existing Lender shall be
required to provide an additional Commitment) and (B) documentation from each
institution providing an additional Commitment evidencing its additional
Commitment and its obligations under this Agreement in form and substance
reasonably acceptable to the Administrative Agent including, without limitation,
Notes evidencing each Lender’s Pro Rata Share of the Aggregate Commitments as
increase; and (vii) if any Loans are outstanding at the time of the increase in
the Aggregate Commitments, the Borrower shall, if applicable and notwithstanding
any provision in any Loan Document requiring the application of payments or
prepayments on a pro rata basis, including, without limitation, Section 2.13,
prepay one or more existing Loans (such prepayment to be subject to Section 3.5)
in an amount necessary such that after giving effect to the increase in the
Aggregate Commitments, each Lender will hold its pro rata share (based on its
Pro Rata Share of the increased Aggregate Commitments) of outstanding
Loans.
2.8 Section
6.2(e) is amended to read
(e) [Reserved];
2.9 Section
6.2(i) is amended to read as follows:
(i) as
soon as available, but in no event later than ninety (90) days after the end of
each fiscal year of Borrower, a schedule of account receivable
agings.
2.10 Section
6.12 (c) is deleted.
2.11 In
Section 7.2 clauses (e) and (f) are renumbered as clauses (f) and (g), and a new
clause (e) is added thereto to read as follows:
(e) Permitted
Acquisitions;
2.12 Clause
(iv) of Section 7.3(d) is amended to read as follows:
(iv) the
foreign exchange exposure under such Swap Contract does not exceed $20,000,000
as determined by Administrative Agent in its sole discretion
2.13 Section
7.4(c) is amended to read as follows:
(c) a
Borrower may acquire another Person or merge or consolidate with or into,
another Person, provided that such acquisition, merger or consolidation is a
Permitted Acquisition.
2.14 Section
7.6(e) is amended to read as follows:
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(e)
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Borrower,
Subsidiaries and Domestic Borrowers may make Restricted Payments in cash
provided that after giving effect to such Restricted Payment (and the
incurrence of any Domestic Debt in connection therewith) on a Pro Forma
Basis (i) no Default or Event of Default shall exist, (ii) the ratio of
Total Funded Debt (the aggregate of Domestic Debt and International Debt)
to consolidated EBITDA of MICROS and all foreign and domestic Affiliates
shall not exceed 1.75:1.0 as of the end of the most recent fiscal quarter
for which Borrower has delivered financial statements pursuant to Section 6.1(a)
or (b),
and (iii) Liquidity exceeds $25
million.
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2.15 Clause
(i) of Section 8.1(a) is amended to read as follows:
(i) when
required to be paid herein, any amount of principal or any Loan, or any L/C
Obligation,
2.16 In
Exhibit D Section III of Schedule 2 is deleted.
3. Conditions
Precedent. This Amendment shall be effective as of the date
hereof upon the satisfaction of the following conditions:
(a) execution
of this Amendment by the Loan Parties and all the Lenders;
(b) receipt
by the Administrative Agent of a certificate of an officer of each Loan Party
certifying that the resolutions of the board of directors of such Loan Party
delivered at the closing of the Credit Agreement have not been rescinded or
modified and remain in full force; and
(c) the
receipt by the Administrative Agent, for the account of each Lender that
executes this Amendment, an amendment fee equal to twenty-five basis points
(0.25%) on the amount of such Lender’s Commitment.
4.
Reaffirmation of
Obligations. Each Loan Party (a) acknowledges and consents to
all of the terms and conditions of this Amendment, (b) affirms all of its
obligations under the Loan Documents and (c) agrees that this Amendment and all
documents executed in connection herewith do not operate to reduce or discharge
such Loan Party’s obligations under the Loan Documents.
5.
Reaffirmation of
Security Interests. Each Loan Party (i) affirms that each of
the Liens granted in or pursuant to the Loan Documents are valid and subsisting
and (ii) agrees that this Amendment shall in no manner impair or otherwise
adversely effect any of the Liens granted in or pursuant to the Loan
Documents.
6.
No Other
Changes. Except as modified hereby, all of the terms and
provisions of the Loan Documents shall remain in full force and
effect.
7.
Counterparts;
Facsimile Delivery. This Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original and it shall not be necessary in making proof of this
Amendment to produce or account for more than one such counterpart. Delivery of
an executed counterpart of this Amendment by facsimile or other electronic
imaging means shall be effective as an original.
8.
Governing
Law. This Amendment shall be deemed to be a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of Maryland.
[Signature
Pages Follow]
IN WITNESS WHEREOF, each of the parties
hereto has caused a counterpart of this First Amendment to be duly executed and
delivered as of the date first above written.
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BORROWERS:
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MICROS-FIDELIO
(IRELAND) LTD., an Irish registered limited liability
company
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MICROS-FIDELIO
SYSTEMS (UK) LTD.,
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a
company organized under the laws of England
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MICROS-FIDELIO
ESPAÑA S.L., a company organized under the laws of
Spain
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MICROS-FIDELIO
(CANADA), LTD.,
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a
corporation under the laws of British Columbia, Canada
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MICROS-FIDELIO
BRAZIL, LTDA., a corporation under the laws of Brazil
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MICROS-FIDELIO
FRANCE S.A.S.,
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a
company organized under the laws of France
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HOSPITALITY
TECHNOLOGIES, S.A., a corporation under the laws of
Argentina
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MICROSFIDELIO
MEXICO S.A. DE C.V.,
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a
company organized under the laws of Mexico
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MICROS
SYSTEMS HOLDING GMBH,
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a
limited liability company under the laws of the Federal Republic of
Germany
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MICROS-FIDELIO
GMBH,
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a
limited liability company under the laws of the Federal Republic of
Germany
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MICROS-FIDELIO
SOFTWARE PORTUGAL UNIPESSOAL LDA,
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a
company under the laws of Portugal
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MICROS-FIDELIO
(THAILAND) CO., LTD.,
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a
company organized under the laws of Thailand
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MICROS-FIDELIO
SINGAPORE PTE LTD.,
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a
company organized under the laws of Singapore
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MICROS-FIDELIO
SOFTWARE (PHILIPPINES), INC.,
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a
corporation under the laws of the Philippines
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MICROS-FIDELIO
JAPAN LTD., a company organized under the laws of Japan
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MICROS-FIDELIO
AUSTRALIA PTY. LTD.,
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a
company organized under the laws of Australia
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MICROS-FIDELIO
HONG KONG, LTD.,
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a
company organized under the laws of Hong Kong
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MICROS-FIDELIO
FINLAND OY (formerly known as FIDELIO NORDIC OY),
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a
company organized under the laws of Norway
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MICROS-FIDELIO
SWEDEN A.B. (formerly known as FIDELIO NORDIC SVERIGE, A.B.), a company
organized under the laws of Sweden
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HOTELBK,
A.B., a corporation under the laws of
Sweden
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By:
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Name:
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Xxxx
Xxxxxxx
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Title:
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Executive
Vice President and
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Chief
Financial Office of each of the
Borrowers
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[SIGNATURE
PAGES FOLLOW]
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MICROS-FIDELIO
NORWAY A/S (formerly known as FIDELIO NORDIC NORWAY A/S), a company
organized under the laws of Norway
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By:
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Name:
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Title:
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[SIGNATURE
PAGES FOLLOW]
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GUARANTORS:
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MICROS
SYSTEMS, INC., a Maryland corporation
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DV
TECHNOLOGY HOLDINGS CORPORATION, a Delaware corporation
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DATAVANTAGE
CORPORATION, an Ohio corporation
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MICROS
FIDELIO NEVADA, LLC, a Nevada limited liability company
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MSI
DELAWARE, LLC, a Delaware limited liability company
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MICROS-FIDELIO
WORLDWIDE, INC., a Nevada corporation
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JTECH
COMMUNICATIONS, INC., a Delaware corporation
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By:
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Name:
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Xxxx
Xxxxxxx
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Title:
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Executive
Vice President and
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Chief
Financial Office of each of the Guarantors
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MICROS-FIDELIO
(IRELAND) LTD,
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a
corporation organized under the laws of Ireland
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By:
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Name:
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Xxxx
Xxxxxxx
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Title:
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Directors
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[SIGNATURE
PAGES FOLLOW]
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ADMINISTRATIVE
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AGENT:
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BANK
OF AMERICA, N.A., as Administrative Agent
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By:
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Name:
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Title:
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LENDERS:
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BANK
OF AMERICA, N.A., as a Lender
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By:
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Name:
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Title:
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WACHOVIA
BANK, NATIONAL ASSOCIATION
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By:
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Name:
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Title:
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U.S.
BANK NATIONAL ASSOCIATION
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By:
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Name:
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Title:
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