EXHIBIT 4.4
AMENDMENT NO. 2 TO CREDIT AGREEMENT
This Amendment dated as of July 29, 2004 between COMPUWARE CORPORATION,
a Michigan corporation (herein called "Company") and COMERICA BANK, a Michigan
banking corporation (herein called "Bank").
R E C I T A L S:
A. Company and Bank entered into that certain Credit Agreement dated
as of May 3, 2003 which was amended by the Amendment No. 1 to
Credit Agreement dated as of April 30, 2004 (as amended, the
"Agreement").
B. Company and Bank desire to amend the Agreement as set forth below.
NOW, THEREFORE, the parties agree as follows:
1. The definition of "Maturity Date" in Section 1 of the Agreement is
amended by replacing the term "July 29, 2004" with the term "July
28, 2005."
2. The Schedule 6.8 attached hereto is substituted for the Schedule
6.8 attached to the Agreement.
3. The Schedule 8.7 attached hereto is substituted for the Schedule
8.7 attached to the Agreement.
4. The above amendments shall be effective as of the date hereof upon
Bank's receipt of (a) this Amendment duly executed and delivered
by Company and Bank, (b) a facility fee in the amount of $150,000
payable by Company to Bank and (c) the opinion of Xxxxxx Xxxxxxxx,
Jr., General Counsel and Secretary of the Company, as to the due
organization and good standing of the Company and the Guarantor,
the Company's and Guarantor's due authorization of this Amendment,
this Amendment's non-contravention with law or the terms of the
Company's and the Guarantor's respective organizational documents,
any required governmental consents or approvals and such other
opinions as the Bank may reasonably request.
5. Except as expressly modified hereby, all of the terms and
conditions of the Agreement shall remain full force and effect.
6. Company hereby represents and warrants that, after giving effect
to the amendments contained herein, (a) execution, delivery and
performance of this Amendment and any other documents and
instruments required under this Amendment or the Agreement are
within Company's corporate powers, have been duly authorized, are
not in contravention of law or the terms of Company's Articles of
Incorporation or Bylaws, and do not require the consent or
approval of any governmental body, agency, or authority; and this
Amendment and any other documents and instruments required under
this Amendment or the Agreement, will be valid and binding in
accordance with their terms; (b) the continuing representations
and warranties of Company set forth in Sections 6.1 through 6.10
of the Agreement are true and correct on and as of the date hereof
with the same force and effect as if made on and as of the date
hereof, substituting, in the case of the representations and
warranties set forth in Sections 6.5 and 6.6, the date March 31,
2004 for the date March 31, 2002, and (c) no Default or Event of
Default has occurred and is continuing as of the date hereof.
Without limiting the foregoing and for the avoidance of doubt,
Company hereby represents and warrants that the execution,
delivery and performance of this Amendment are within Company's
corporate powers, have been duly authorized, are not in
contravention of law or Company's organizational documents or of
the un-waived terms of any indenture, agreement or undertaking to
which Company is a party or by which it is bound and do not
require the consent or approval of any governmental body, agency
or authority; and this Amendment is the valid and binding
obligation of Company, enforceable against Company in accordance
with its terms.
7. This Amendment may be executed in counterparts as provided in
Section 10.12 of the Agreement
Executed as of the date first written above.
COMERICA BANK COMPUWARE CORPORATION
By: /s/ Xxxxxxx X. X'Xxxxxx By: /s/ Xxxxx Xxxxxxxx
---------------------------- ------------------
Xxxxxxx X. X'Xxxxxx Xxxxx Xxxxxxxx
Its: Vice President Its: Senior Vice President and
Chief Financial Officer
ACKNOWLEDGMENT OF GUARANTOR
The undersigned is the Guarantor under that certain Guaranty dated May
2, 2003 ("Guaranty") made by the undersigned in favor of Comerica Bank ("Bank")
with respect to the obligations and liabilities of Compuware Corporation, a
Michigan corporation ("Company") to Bank. The undersigned (a) acknowledges the
execution and delivery of the foregoing Amendment, (b) affirms each of its
obligations to Bank under the Guaranty, and (c) acknowledges and agrees that the
Guaranty remains in full force and effect in accordance with its terms and that
the undersigned has no defense, counterclaim or setoff to its obligations under
the Guaranty.
Dated: July 29, 2004
COMPUWARE INTERNATIONAL I LLC
By: Compuware Corporation
Its: Sole Member
By: /s/ Xxxxx Xxxxxxxx
------------------
Xxxxx Xxxxxxxx
Its: Senior Vice President and
Chief Financial Officer
SCHEDULE 6.8
SUBSIDIARIES
NAME JURISDICTION OF INCORPORATION
Compuware A.B....................................... Sweden
Compuware AG........................................ Switzerland
Compuware Nordic AS................................. Norway
Compuware A/S....................................... Denmark
Compuware Asia-Pacific Holdings Ltd................. Hong Kong
Compuware Asia Pacific Limited...................... Hong Kong
Compuware Asia Pacific Pte. Ltd..................... Singapore
Compuware Asia-Pacific Pty. Ltd..................... Australia
Compuware B.V....................................... Netherlands
Compuware Corporation of Canada..................... Canada
Compuware de Mexico................................. Mexico
Compuware do Brasil S/A............................. Brazil
Compuware Europe B.V................................ Netherlands
Compuware Foreign Sales Corporation................. Barbados
Compuware Global Services, Inc...................... Michigan
Compuware Austria GmbH.............................. Austria
Compuware International I LLC....................... Michigan
Compuware Japan Corporation......................... Japan
Compuware Korea Ltd................................. Korea
Compuware Ltd....................................... United Kingdom
Compuware NV/SA..................................... Belgium
Compuware Overseas Holding Corporation.............. Michigan
Compuware S.A....................................... Spain
Compuware S.A.R.L................................... France
Compuware GmbH...................................... Germany
Compuware System Software B.V....................... Netherlands
Compuware SpA....................................... Italy
Reliant Data Systems Inc. .......................... Delaware
Changepoint EMEA ................................. France
Changepoint France .................................. France
Changepoint International SRL .................. Barbados
SCHEDULE 8.7
NON-ARMS LENGTH TRANSACTIONS WITH AFFILIATES
Foresee Results, Inc. $5,433,000.00 Aggregate loan made to Foresee pursuant to:
- Promissory Note issued in favor of
Compuware Corporation dated June 18,
2002 in the amount of $1,500,000
- Promissory Note issued in favor of
Compuware Corporation dated September
18, 2002 in the amount of $1,500.000
- Promissory Note issued in favor of
Compuware Corporation dated March 7,
2003 in the amount of $500.000
- Promissory Note issued in favor of
Compuware Corporation dated May 14,
2003 in the amount of $500.000
- Promissory Note issued in favor of
Compuware Corporation dated June 27,
2003 in the amount of $500.000
- Promissory Note issued in favor of
Compuware Corporation dated September
16, 2003 in the amount of $500.000
- Promissory Note issued in favor of
Compuware Corporation dated December
12, 2003 in the amount of $333,000
- Promissory Note issued in favor of
Compuware Corporation dated July 28,
2004 in the amount of $100,000
CareTech Solutions, Inc. $19,166,666.76 Original loan amount made to CareTech
pursuant to Promissory Note issued in favor
of Compuware Corporation dated January 1,
2002 Current Balance as of the date of
Schedule $15,271,490.36
IBM Credit Corporation $12,500,000.00 Continuing Limited Parent Guaranty, dated
December 9, 1999, guaranteeing CareTech
obligations under a Transaction Agreement
with regard to the acquisition of certain
IBM computer hardware
