EXHIBIT 4.1
FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT
This FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is dated as of October 6, 2005, and is entered into among
ACTIVANT SOLUTIONS INC. (the "Borrower"), ACTIVANT SOLUTIONS HOLDINGS INC.
("Holdings"), each of the LENDERS (as defined in the Credit Agreement referred
to below) signatory hereto, and JPMORGAN CHASE BANK, N.A., as administrative
agent for the Lenders (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
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WHEREAS, the Borrower, Holdings, the Lenders, the Administrative
Agent, and X.X. Xxxxxx Securities Inc. and Deutsche Bank Securities Inc., as
joint lead arrangers and bookrunners, are parties to the Fourth Amended and
Restated Credit Agreement, dated as of September 13, 2005 (the "Credit
Agreement");
WHEREAS, the Borrower and Holdings have requested that the Lenders
agree to an amendment to the Credit Agreement as set forth herein; and
WHEREAS, the Lenders are willing to amend the Credit Agreement,
subject to the terms and conditions of this Amendment;
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 hereby agree as follows:
SECTION 1. Definitions. Any capitalized term used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.
SECTION 2. Amendment to Credit Agreement. The definition of
"Permitted Refinancing" in Section 1.1 of the Credit Agreement is hereby
amended, effective as of the date this Amendment becomes effective in accordance
with Section 3 hereof, by deleting such definition in its entirety and replacing
such definition with the following new definition:
""Permitted Refinancing": with respect to any Person, any
modification, refinancing, refunding, renewal or extension of any
Indebtedness of such Person; provided that: (a) the principal amount
(or accreted value, if applicable) thereof does not exceed the
principal amount (or accreted value, if applicable) of the
Indebtedness so modified, refinanced, refunded, renewed or extended
(except in connection with a refinancing of the Holdings Financing
through a Permitted Refinancing of the Bridge Financing; provided
that any such Permitted Refinancing satisfies all the requirements
set forth in clauses (b) through and including (f) of this
definition) plus, in connection with any Permitted Refinancing of the
Bridge Financing, an amount not to exceed $5.0 million plus, in
connection with any Permitted Refinancing of the Bridge Financing
and/or the Holdings Financing, the amount of any original issue
discount permitted to be incurred in connection such Permitted
Refinancing as contemplated by the Bridge Loan Agreement or the
Holdings Bridge Loan Agreement, as applicable, as in effect as of the
date hereof, except by an amount equal to a reasonable premium or
other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such modification, refinancing,
refunding, renewal or extension; (b) such modification, refinancing,
refunding, renewal or extension has a final maturity date that is no
sooner than 91 days after the Stated Maturity Date, and has no
scheduled amortization payments prior to 91 days after the Stated
Maturity Date; (c) if the Indebtedness being modified, refinanced,
refunded, renewed or extended is subordinated in right of payment to
the Obligations, such modification, refinancing, refunding, renewal
or extension is subordinated in right of payment to the Obligations
on terms at least as favorable to the Lenders as those contained in
the documentation governing the Indebtedness being modified,
refinanced, refunded, renewed or extended; (d) the prepayment terms,
events of defaults, covenants, conditions (including, without
limitation, conditions regarding collateral), rights or remedies of
any such modified, refinanced, refunded, renewed or extended
Indebtedness are not materially less favorable to the Credit Parties
or the Lenders than the prepayment terms, events of defaults,
covenants, conditions (including, without limitation, conditions
regarding collateral), rights or remedies of the Indebtedness being
modified, refinanced, refunded, renewed or extended; provided,
however, that any Permitted Refinancing of the Bridge Financing
and/or the Holdings Financing may have customary prepayment terms as
contemplated by the Bridge Loan Agreement or the Holdings Bridge Loan
Agreement, as applicable, as in effect as of the date hereof; (e)
such modification, refinancing, refunding, renewal or extension is
incurred and/or guaranteed by only the Persons who are the obligors
on the Indebtedness being modified, refinanced, refunded, renewed or
extended, except in connection with any Permitted Refinancing of the
Bridge Financing to the extent permitted in Section 8.4(l); and (f)
at the time thereof and after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing, and after
giving pro forma effect thereto the Borrower would have been in
compliance with Section 8.1 as of the last Test Date."
SECTION 3. Conditions to Effectiveness. This Amendment and the
effectiveness of the amendment set forth in Section 2 hereof shall be effective
as of the date hereof (the "Effective Date"), when, and only when, the
Administrative Agent shall have received the following:
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(a) original or facsimile counterparts of this Amendment
duly executed and delivered by each of (i) the Borrower, (ii)
Holdings, (iii) the Required Lenders and (iv) the Administrative
Agent; and
(b) an original or facsimile counterpart of the Grantor
Acknowledgment and Consent in the form of Exhibit A attached hereto
duly executed and delivered by each of the Subsidiaries of the
Borrower parties thereto.
SECTION 4. Representations and Warranties. In order to induce the
Required Lenders and the Administrative Agent to enter into this Amendment, the
Borrower represents and warrants to each of the Lenders and the Administrative
Agent that, after giving effect to this Amendment, and both before and after
giving effect to the transactions contemplated by this Amendment:
(a) no Default or Event of Default has occurred and is
continuing; and
(b) each of the representations and warranties made by
each of the Credit Parties in or pursuant to the Loan Documents are
true and correct in all material respects on and as of the date
hereof as if made on the date hereof (or, if any such representation
or warranty is expressly stated to have been made as of a specific
date, as of such specific date).
SECTION 5. Reference to and Effect on the Loan Documents. On and
after the Effective Date, each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof" or words of like import referring to the
Credit Agreement, and each reference in each of the other Loan Documents to "the
Credit Agreement," "thereunder," "thereof" or words of like import referring to
the Credit Agreement, shall mean and be a reference to the Credit Agreement, as
amended by this Amendment. The Credit Agreement and each of the other Loan
Documents, as specifically amended by this Amendment, are and shall continue to
be in full force and effect. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender or the Administrative Agent under any
of the Loan Documents, nor constitute a waiver of any provision of any of the
Loan Documents.
SECTION 6. Costs and Expenses. The Borrower agrees to pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with the preparation, execution and delivery of this Amendment
(including, without limitation, the reasonable fees and expenses of Xxxxxx
Xxxxxx & Xxxxxxx LLP, counsel to the Administrative Agent), in accordance with
the terms of Section 12.5 of the Credit Agreement.
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SECTION 7. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
facsimile shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
ACTIVANT SOLUTIONS INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Senior Vice President and CFO
ACTIVANT SOLUTIONS HOLDINGS INC.
By: /s/ Xxxx Xxxxxxxx
------------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President and CFO
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and a Lender
By: /s/ Xxxxxx Xxxxx Xxxxx
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Name: Xxxxxx Xxxxx Xxxxx
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender
By: /s/ Xxxxxx Xxxxx
------------------------------------------------
Name: Xxxxxx Xxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
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EXHIBIT A
To First Amendment
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GRANTOR ACKNOWLEDGMENT AND CONSENT
The undersigned, each a Grantor under the Third Amended and Restated
Guarantee and Collateral Agreement, dated as of September 13, 2005 (as amended,
supplemented or otherwise modified from time to time, the "Guarantee and
Collateral Agreement"), made by Activant Solutions Inc., a Delaware corporation
("Borrower"), Activant Solutions Holdings Inc., a Delaware corporation
("Holdings") and each of the Subsidiaries of the Borrower that are parties
thereto, each hereby (i) acknowledges and consents to the execution, delivery
and performance by the Borrower and Holdings of the First Amendment to Credit
Agreement, dated as of September 23, 2005 (the "Amendment"), by and among the
Borrower, Holdings, the Lenders party thereto, and JPMorgan Chase Bank, N.A., as
administrative agent for the Lenders, and (ii) reaffirms and agrees that the
Guarantee and Collateral Agreement and any other Loan Document to which the
undersigned is party are in full force and effect, without defense, offset or
counterclaim.
IN WITNESS WHEREOF, each of the undersigned has caused this Grantor
Acknowledgement and Consent to be executed by their respective officers
thereunto duly authorized as of October 6, 2005.
CCI/ARD, INC.
PROPHET 21, INC.
for each of the foregoing entities
By: /s/ Xxxx Xxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President and CFO
CCI/TRIAD GEM, INC.
TRIAD SYSTEMS CORPORATION
TRIAD SYSTEMS FINANCIAL CORPORATION
TRIAD DATA CORPORATION
XX XXXX LLC
SPEEDWARE HOLDINGS, INC.
SPEEDWARE USA INC.
ENTERPRISE COMPUTER SYSTEMS, INC.
PRELUDE SYSTEMS, INC.
PROPHET 21 INVESTMENT CORPORATION
PROPHET 21 CANADA INC.
PROPHET 21 (NEW JERSEY), INC.
DISTRIBUTOR INFORMATION SYSTEMS CORPORATION
TRADE SERVICE SYSTEMS, INC.
SDI MERGER CORPORATION
STANPAK SYSTEMS, INC.
for each of the foregoing entities
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: President
