EXHIBIT 10.4
NOTICE AND WAIVER
THIS NOTICE AND WAIVER (the "Waiver") dated as of September 30, 2002, by
and among KPMG CONSULTING, INC., a Delaware corporation (the "Borrower"), the
Guarantors, the Banks, and PNC BANK, NATIONAL ASSOCIATION, as Administrative
Agent.
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to that certain Credit Agreement
dated as of May 29, 2002 (as heretofore amended, supplemented, restated or
modified, the "Credit Agreement") by and among the Borrower, the Banks, the
Guarantors, and PNC Bank, National Association, as Administrative Agent; and
WHEREAS, the Borrower proposes to change its name pursuant to a
transaction under Section 253(b) of the Delaware General Corporation Law as
follows: a newly formed wholly owned subsidiary of the Borrower shall merge into
the Borrower (with the Borrower being the surviving corporation) and
simultaneously therewith the Borrower shall change its name--such name to be
subsequently identified (the "Change of Name");
WHEREAS, Section 7.2.13 (Changes in Organizational Documents) provides in
part as follows:
"The Borrower shall not amend in any respect its certificate of
incorporation . . without providing at least fifteen (15) calendar
days' prior written notice to the Administrative Agent and the Banks
and, in the event such change would be materially adverse to the Banks
as reasonably determined by the Administrative Agent in its sole
discretion, obtaining the prior written consent of the Required Banks";
WHEREAS, the Borrower desires (1) to notify the Banks of the Change of
Name, (2) for the Banks to waive any requirement under Section 7.2.13 that such
notice be delivered 15 days prior to the effective date of such Change of Name,
and (3) for the Banks to approve of such Change of Name; and
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. Notice and Waiver.
The Administrative Agent and the Banks hereby confirm (1) receipt of
notice of the Change of Name hereby, (2) that they waive any requirement under
Section 7.2.13 that such notice be delivered 15 days prior to the effective date
of such Change of Name, and (3) that they approve of such Change of Name
notwithstanding any restrictions in Section 7.2.13 or otherwise under the Credit
Agreement.
2. Notice of Consumation of Name Change.
The Borrower shall notify the Banks and the Borrower that the Change of
Name has been consummated and of the new name of the Borrower within five (5)
days after the effective date thereof.
3. Representations, Warranties and Other Covenants Regarding Change of
Name.
The Loan Parties represent, warrant and covenant that (1) the Borrower
shall be the surviving corporation under the Change of Name transaction
described above, (2) that the certificate of incorporation of the Borrower shall
not be modified in connection such transaction except for the change of name,
and (3) that the recitals hereto (including the description of the Change of
Name transaction therein) are true and correct. The parties hereto acknowledge
and confirm that all references to the Borrower under the Loan Documents shall
be deemed to be to the Borrower under its new name after the effective date of
the Change of Name.
4. Conditions to Effectiveness.
This Waiver shall be effective when the Required Banks, the Administrative
Agent, the Borrower and the other Loan Parties shall have executed and delivered
to the Administrative Agent signature pages hereto.
5. Force and Effect.
The Loan Parties reconfirm, restate, and ratify the Credit Agreement and
all other documents executed in connection therewith and the Loan Parties
confirm that all such documents have remained in full force and effect since the
date of their execution except to the extent that the Credit Agreement is
expressly modified by this Waiver.
6. Governing Law.
This Waiver shall be deemed to be a contract under the laws of the State
of New York and for all purposes shall be governed by and construed and enforced
in accordance with the internal laws of the State of New York without regard to
its conflict of laws principles.
7. Counterparts; Effective Date.
This Waiver may be signed in any number of counterparts each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
-2-
[SIGNATURE PAGE 1 OF 15 TO NOTICE AND WAIVER]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Agreement as of the day and year first above
written.
BORROWER:
KPMG CONSULTING, INC.
By: (SEAL)
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Name:
Title:
GUARANTORS:
KPMG CONSULTING, LLC
By: (SEAL)
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Name:
Title:
KPMG CONSULTING ISRAEL, LLC
By: (SEAL)
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Name:
Title:
SOFTLINE ACQUISITION CORP.
By: (SEAL)
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Name:
Title:
KPMG CONSULTING GLOBAL OPERATIONS, INC.
By: (SEAL)
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Name:
Title:
[SIGNATURE PAGE 2 OF 15 TO NOTICE AND WAIVER]
SOFTLINE CONSULTING & INTEGRATORS, INC.
By: (SEAL)
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Name:
Title:
I2 MIDATLANTIC LLC
By: (SEAL)
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Name:
Title:
I2 NORTHWEST LLC
By: (SEAL)
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Name:
Title:
OAD ACQUISITION CORP.
By: (SEAL)
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Name:
Title:
KPMG ENTERPRISE INTEGRATION SERVICES LLC
By: (SEAL)
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Name:
Title:
KCIN CAPITAL LLC
By: (SEAL)
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Name:
Title:
[SIGNATURE PAGE 3 OF 15 TO NOTICE AND WAIVER]
OAD GROUP, INC.
By: (SEAL)
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Name:
Title:
METRIUS, INC.
By: (SEAL)
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Name:
Title:
PEATMARWICK, INC.
By: (SEAL)
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Name:
Title:
KPMG ENTERPRISE HOLDINGS LLC
By: (SEAL)
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Name:
Title:
GLOBAL CONSULTING DE, LLC
By: (SEAL)
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Name:
Title:
KPMG CONSULTING INTERNATIONAL, INC.
By: (SEAL)
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Name:
Title:
[SIGNATURE PAGE 4 OF 15 TO NOTICE AND WAIVER]
KPMG SOUTH PACIFIC, LLC
By: (SEAL)
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Name:
Title:
KPMG CONSULTING AMERICAS, INC.
By: (SEAL)
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Name:
Title:
BARENTS GROUP, L.L.C.
By: (SEAL)
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Name:
Title:
PELOTON HOLDINGS, L.L.C.
By: (SEAL)
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Name:
Title:
[SIGNATURE PAGE 5 OF 15 TO NOTICE AND WAIVER]
BARENTS EUROPEAN HOLDINGS, L.L.C.
By: (SEAL)
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Name:
Title:
K CONSULTING SOUTHEAST ASIA, L.L.C.
By: (SEAL)
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Name:
Title:
BARENTS GROUP RUSSIA, L.L.C.
By: (SEAL)
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Name:
Title:
[SIGNATURE PAGE 6 OF 15 TO NOTICE AND WAIVER]
PNC BANK, NATIONAL ASSOCIATION, individually and as
Administrative Agent
By:
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Title:
[SIGNATURE PAGE 7 OF 15 TO NOTICE AND WAIVER]
JPMORGAN CHASE BANK
individually and as Documentation Agent
By:
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Title:
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[SIGNATURE PAGE 8 OF 15 TO NOTICE AND WAIVER]
BARCLAYS BANK PLC, individually and as Syndication Agent
By:
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Title:
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[SIGNATURE PAGE 9 OF 15 TO NOTICE AND WAIVER]
SOCIETE GENERALE
By:
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Title:
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[SIGNATURE PAGE 10 OF 15 TO NOTICE AND WAIVER]
SUNTRUST BANK, individually and as the Co-Agent
By:
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Title:
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[SIGNATURE PAGE 11 OF 15 TO NOTICE AND WAIVER]
BANK OF AMERICA, N.A., individually and as
Documentation Agent
By:
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Title:
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[SIGNATURE PAGE 12 OF 15 TO NOTICE AND WAIVER]
THE NORTHERN TRUST COMPANY
By:
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Title:
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[SIGNATURE PAGE 13 OF 15 TO NOTICE AND WAIVER]
WESTPAC BANKING CORPORATION
By:
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Title:
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[SIGNATURE PAGE 14 OF 15 TO NOTICE AND WAIVER]
MELLON BANK, N.A.
By:
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Title:
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[SIGNATURE PAGE 15 OF 15 TO NOTICE AND WAIVER]
CITIBANK, N.A., individually and as Documentation Agent
By:
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Title:
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