Exhibit 4.5
FIRST AMENDMENT AGREEMENT
THIS FIRST AMENDMENT AGREEMENT (this "First Amendment") is entered into
as of September 30, 2003 by and among, on the one hand, the lenders identified
on the signature pages hereof (such lenders, together with their respective
successors and assigns, collectively the "Lenders" and each a "Lender"), Wells
Fargo Foothill, Inc., as the arranger, collateral agent and administrative agent
for the Lenders (in such capacity, "Agent"), and, on the other hand, Geac
Computers, Inc., a Missouri corporation (the "Administrative Borrower" or
"GCI"), on behalf of itself and each of its Affiliates designated as Borrowers
on Exhibit A hereto (GCI and such Affiliates collectively, the "Borrowers"),
each of the Administrative Borrower's Affiliates designated as Canadian
Guarantors on Exhibit A hereto (collectively, the "Canadian Guarantors"), each
of the Administrative Borrower's Affiliates designated as UK Guarantors on
Exhibit A hereto (collectively, the "UK Guarantors") and each of Administrative
Borrower's Affiliates designated as Other Guarantors on Exhibit A hereto
(collectively, the "Other Guarantors", and collectively with the Borrowers, the
Canadian Guarantors and the UK Guarantors, the "Loan Parties").
RECITALS
The Loan Parties, the Lenders and the Agent have entered into the
Loan, Guaranty and Security Agreement dated as of September 9, 2003 (as amended
hereby and as further amended, restated, supplemented or otherwise modified from
time to time, the "Loan Agreement") pursuant to which the Lenders and the Agent
have agreed to make certain revolving credit advances and to provide certain
other financial accommodations to the Borrowers. Borrowers have appointed GCI as
Administrative Borrower under the Loan Agreement. Pursuant to Section 15.1 of
the Loan Agreement, the Administrative Borrower may execute amendments and
waivers on behalf of all of the Borrowers. The Loan Parties have requested
certain amendments to and waivers under the Loan Agreement. The Agent and the
Lenders are willing to grant the waivers set forth in Section 2 below and to
amend the Loan Agreement, in each case on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties signatory
hereto agree as follows.
1. Amendments to the Loan Agreement.
(a) Section 1.1 of the Loan Agreement is hereby amended
as follows:
(i) The following new definition is inserted in
appropriate alphabetical order:
"First Amendment" means the First Amendment Agreement
dated as of September 30, 2003 by and among the
Administrative Borrower (on behalf of the Borrowers),
the Guarantors, Lenders and Agent.
(ii) The definition of the term "BofA Controlled
DDAs" is amended by inserting the number "350119037209" after the
number "350229037217,".
(iii) The definition of the term "Loan Documents"
is amended by inserting the words "the First Amendment," after the
words "means this Agreement,".
(b) The Loan Agreement is hereby amended by deleting
Schedule 5.18 thereto in its entirety and inserting in lieu thereof the Schedule
5.18 attached hereto.
2. Waivers.
(a) Subject to Section 2(b) below, the Agent and the
Lenders hereby waive the following (collectively, the "Identified Events of
Default"):
(i) any Default or Event of Default arising
under Section 2.7(a) or Section 8.2 of the Loan Agreement solely to the
extent resulting from the Borrowers' failure to comply with the
requirement to promptly deposit all cash and Cash Equivalents, checks
and other items of payment held or received by the Borrowers into a
Controlled Account by reason of GCI's depositing amounts into account
number 350119037209 maintained by GCI at BofA (the "New Account")
during the period between the Closing Date and Agent's receipt of the
duly executed BofA Blocked Account Amendment (as defined below); and
(ii) any Default or Event of Default arising
under Sections 5.18, 8.2 or 8.11 of the Loan Agreement or under the
Perfection Certificate delivered by GCI to the Agent at the Closing, in
each case solely to the extent resulting from the Borrowers' failure to
set forth the New Account on the Schedule 5.18 delivered to the Agent
on the Closing Date or in such Perfection Certificate.
(b) The waivers set forth in Section 2(a) hereof are
subject to the condition that within 5 Business Days from the date hereof, the
Agent shall have received a duly executed amendment (the "BofA Blocked Account
Amendment") to the Control Agreement executed and delivered at the Closing with
respect to the BofA Controlled DDAs (the "BofA Blocked Account Agreement") in
form and substance reasonably satisfactory to the Agent that makes the New
Account subject to such Control Agreement in substantially the manner that the
other BofA Controlled DDAs are subject thereto.
(c) The Loan Parties acknowledge and agree that the
foregoing provisions of this Section 2 relate solely to the Identified Events of
Default specified in Section 2(a) hereof and shall in no way be deemed or
construed as a waiver by the Agent and the Lenders of any other Default or Event
of Default under the Loan Agreement or any other Loan Document, known or
unknown, now existing or occurring subsequent to the date of this First
Amendment. The Agent and the Lenders expressly reserve the full extent of their
rights under the Loan Agreement, the other Loan Documents and applicable law in
respect of any Default or Event of Default existing on the date hereof and not
specified herein as an Identified Event of Default.
3. Conditions Precedent to First Amendment. The satisfaction of
each of the following, unless waived or deferred by the Agent, in its sole
discretion, shall constitute conditions precedent to the effectiveness of this
First Amendment and each and every provision hereof:
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(a) The Agent shall have received this First Amendment
duly executed by each of the parties hereto;
(b) The representations and warranties in this First
Amendment, the Loan Agreement (as amended hereby) and the other Loan Documents
shall be true and correct in all respects on and as of the date hereof, as
though made on such date (except to the extent that such representations and
warranties relate solely to an earlier date);
(c) Except for the Identified Events of Default, no Event
of Default shall have occurred and be continuing on the date hereof, nor shall
any Default or Event of Default result from the consummation of the transactions
contemplated herein; and
(d) No injunction, writ, restraining order, or other
order of any nature prohibiting, directly or indirectly, the consummation of the
transactions contemplated herein shall have been issued and remain in force by
any court or other governmental authority against the Loan Parties or the Agent.
4. Representations and Warranties. Each Loan Party party hereto
hereby represents and warrants to the Agent that (a) the execution, delivery,
and performance of this First Amendment and the Loan Agreement are within such
Loan Party's corporate or other organizational powers, have been duly authorized
by all necessary corporate or other organizational action, and are not in
contravention of any law, rule, or regulation, or any order, judgment, decree,
writ, injunction, or award of any arbitrator, court, or governmental authority,
or of the terms of its charter, bylaws or other constitutional documents, or of
any contract or undertaking to which it is a party or by which any of its
properties may be bound or affected; (b) this First Amendment and the Loan
Agreement constitute the Loan Parties' legal, valid, and binding obligation,
enforceable against the Loan Parties in accordance with its terms, except as
enforcement may be limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws relating to or
limiting creditors' rights generally; (c) this First Amendment has been duly
executed and delivered by such Loan Party; and (d) except for the Identified
Events of Default, no Default or Event of Default has occurred or is continuing.
5. Effect on Loan Documents. The Loan Agreement (as amended
hereby) and the other Loan Documents (including the BofA Blocked Account
Agreement, as amended by the BofA Blocked Account Amendment) shall be and remain
in full force and effect in accordance with their terms and hereby are ratified
and confirmed in all respects. Except as expressly set forth herein, the
execution, delivery, and performance of this First Amendment shall not operate
as a waiver or an amendment of any right, power, or remedy of the Agent or the
Lenders under the Loan Agreement or any other Loan Document, as in effect prior
to the date hereof.
6. No Novation; Entire Agreement. This First Amendment evidences
solely the amendment and waiver of the terms and provisions of the Loan Parties'
obligations under the Loan Agreement and is not a novation or discharge thereof.
There are no other understandings, express or implied, among the Agent, the
Lenders and the Loan Parties regarding the subject matter hereof.
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7. Choice of Law. The validity of this First Amendment, its
construction, interpretation and enforcement, and the rights of the parties
hereunder, shall be determined under, governed by, and construed in accordance
with the laws of The Commonwealth of Massachusetts without regard to conflicts
of laws principles.
8. Counterparts; Telefacsimile Execution. This First Amendment
may be executed in any number of counterparts and by different parties and
separate counterparts, each of which when so executed and delivered shall be
deemed an original, and all of which, when taken together, shall constitute one
and the same instrument. Delivery of an executed counterpart of a signature page
to this First Amendment by telefacsimile shall be as effective as delivery of a
manually executed counterpart of this First Amendment. Any party delivering an
executed counterpart of this First Amendment by telefacsimile also shall deliver
a manually executed counterpart of this First Amendment but the failure to
deliver a manually executed counterpart shall not affect the validity,
enforceability, and binding effect of this First Amendment.
9. Definitions and Construction.
(a) Capitalized terms used but not otherwise defined
herein shall have the respective meanings given to such terms in the Loan
Agreement, as amended hereby.
(b) This First Amendment is a Loan Document. This First
Amendment and the Loan Agreement shall be construed collectively and in the
event that any term, provision or condition of any of such documents is
inconsistent with or contradictory to any term, provision or condition of any
other such document, the terms, provisions and conditions of this First
Amendment shall supersede and control the terms, provisions and conditions of
the Loan Agreement. Upon and after the effectiveness of this First Amendment,
each reference in the Loan Agreement to "this Agreement", "hereunder", "herein",
"hereof" or words of like import referring to the Loan Agreement, and each
reference in the other Loan Documents to "the Loan Agreement", "thereunder",
"therein", "thereof" or words of like import referring to the Loan Agreement,
shall mean and be a reference to the Loan Agreement as modified and amended
hereby.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
Agreement to be executed as of the date first above written.
ADMINISTRATIVE BORROWER:
GEAC COMPUTERS, INC.,
AS ADMINISTRATIVE BORROWER
By: /s/ Hema Anganu
------------------------------
Hema Anganu
Authorized Signatory
CANADIAN GUARANTORS:
GEAC CANADA LIMITED
By: /s/ Hema Anganu
------------------------------
Hema Anganu
Treasurer
2019856 ONTARIO INC.
By: /s/ Hema Anganu
------------------------------
Hema Anganu
Treasurer
GEAC (CANADA) SERVICES LIMITED
By: /s/ Hema Anganu
------------------------------
Hema Anganu
Treasurer
Signature Page
915873 ONTARIO LTD.
By: /s/ Hema Anganu
------------------------------
Hema Anganu
Treasurer
877025 ALBERTA LTD.
By: /s/ Hema Anganu
------------------------------
Hema Anganu
Treasurer
Signature Page
UK GUARANTORS:
GEAC (UK) HOLDINGS LIMITED
By: /s/ Paul Wheeler
------------------------------
Paul Wheeler
Director
GEAC SOFTWARE SOLUTIONS LIMITED
By: /s/ Paul Wheeler
------------------------------
Paul Wheeler
Director
GEAC COMPUTER SYSTEMS (UK)
LIMITED
By: /s/ Paul Wheeler
------------------------------
Paul Wheeler
Director
REMANCO SYSTEMS LIMITED
By: /s/ Paul Wheeler
------------------------------
Paul Wheeler
Director
TEKSERV COMPUTER SERVICES LIMITED
By: /s/ Paul Wheeler
------------------------------
Paul Wheeler
Director
Signature Page
GEAC ENTERPRISE SOLUTIONS
HOLDINGS LIMITED
By: /s/ Paul Wheeler
------------------------------
Paul Wheeler
Director
GEAC ENTERPRISE SOLUTIONS LIMITED
By: /s/ Paul Wheeler
------------------------------
Paul Wheeler
Director
GEAC ENTERPRISE SOLUTIONS
DEVELOPMENT LIMITED
By: /s/ Paul Wheeler
------------------------------
Paul Wheeler
Director
MAI UNITED KINGDOM LIMITED
By: /s/ Paul Wheeler
------------------------------
Paul Wheeler
Director
GEAC UK LIMITED
By: /s/ Paul Wheeler
------------------------------
Paul Wheeler
Director
Signature Page
OTHER GUARANTORS:
GEAC ULC
By: /s/ Hema Anganu
------------------------------
Hema Anganu
President
GEAC USA LLC
By: /s/ James M. Riley
------------------------------
Name: James M. Riley
Title: Director
AGENT AND LENDERS:
WELLS FARGO FOOTHILL, INC.,
as Agent and as a Lender
By: /s/ David Sanchez
------------------------------
David Sanchez
Vice President
Signature Page
EXHIBIT A
BORROWERS:
Geac Computer Corporation Limited, a Canadian corporation
Geac Enterprise Solutions, Inc., a Georgia corporation
News Holdings Corp., a Delaware corporation
Interealty Corp., a Colorado corporation,
Geac (Delaware) Partnership, a Delaware partnership
Remanco International, Inc., a Delaware corporation
Extensity, Inc., a Delaware corporation
Geac Hungary Asset Management Company Limited By Shares, a company limited by
shares organized under the laws of the Republic of Hungary
CANADIAN GUARANTORS:
Geac Canada Limited, a Canadian corporation
2019856 Ontario Inc., an Ontario corporation
Geac (Canada) Services Limited, a Canadian corporation
915873 Ontario Ltd., an Ontario corporation
877025 Alberta Ltd., an Alberta corporation
UK GUARANTORS:
Geac (UK) Holdings Limited, a UK company
Geac Software Solutions Limited, a UK company
Geac Computer Systems (UK) Limited, a UK company
Remanco Systems Limited, a UK company
Tekserv Computer Services Limited, a UK company
Geac Enterprise Solutions Holdings Limited, a UK company
Geac Enterprise Solutions Limited, a UK company
Geac Enterprise Solutions Development Limited, a UK company
MAI United Kingdom Limited, a UK company
Geac UK Limited, a UK company
OTHER GUARANTORS:
Geac ULC, a Nova Scotia unlimited liability company
Geac USA LLC, a Delaware limited liability company