Exhibit 10.1
EXECUTION COPY
FIRST INCREMENTAL AMENDMENT TO CREDIT AGREEMENT
FIRST
INCREMENTAL AMENDMENT TO CREDIT AGREEMENT (as defined below), dated
as of August 17, 2007 (this “ First Incremental
Amendment ”) among ACTIVANT GROUP INC. (f/k/a Lone Star
Holding Corp.), a Delaware corporation (“ Holdings
”), ACTIVANT SOLUTIONS INC., a Delaware corporation (the
“ Borrower ”), DEUTSCHE BANK TRUST COMPANY
AMERICAS, as administrative agent (in such capacity, the “
Administrative Agent ”), and the 2007 Term Lenders.
Unless otherwise indicated, all capitalized terms used herein (and
including in this preamble and in the recitals hereto) and not
otherwise defined shall have the respective meanings provided such
terms in the Credit Agreement referred to below. The rules of
construction specified in Sections 1.02 through 1.09 of the
Credit Agreement shall apply to this First Incremental Amendment
including the terms defined in the preamble and recitals
hereto.
WITNESSETH:
WHEREAS,
Holdings, the Borrower, various lenders from time to time party
thereto (each, a “ Lender ” and, collectively,
the “ Lenders ”), the Administrative Agent,
Deutsche Bank Trust Company Americas, as Swing Line Lender and an
L/C Issuer, JPMorgan Chase Bank, N.A., as Syndication Agent, and
Lehman Commercial Paper Inc., as Documentation Agent, are parties
to a Credit Agreement, dated as of May 2, 2006 (the “
Credit Agreement ”);
WHEREAS,
Greenland Holding Corp., a Delaware corporation and a wholly-owned
Subsidiary of the Borrower (“ Greenland ”),
desires to acquire the “Transferred Assets”, and assume
the “Assumed Liabilities” (such assets and liabilities,
collectively, the “ Iceland Business” ), from
Intuit Inc. (the “ Seller ”) pursuant to, and in
accordance with the terms of, that certain Asset Purchase
Agreement, dated as of July 2, 2007 (the “ Iceland
Acquisition Agreement ”), among the Seller, the Borrower
and Greenland, which acquisition (and related assumption) will be
effected in accordance with the requirements of a Permitted
Acquisition pursuant to the terms of the Credit Agreement (such
acquisition, the “ Iceland Acquisition ”);
WHEREAS,
the Borrower has requested that the 2007 Term Lender provide, and
the 2007 Term Lender has agreed to so provide, the 2007 Term Loans
to the Borrower pursuant to the provisions of Section 2.15 of
the Credit Agreement in order to finance a portion of the purchase
price for the Iceland Acquisition;
WHEREAS,
the Borrower has requested that the 2007 Term Lender and the
Administrative Agent effect certain amendments to the Credit
Agreement in accordance with Section 2.15(a) thereof as are
necessary and appropriate to effect the provisions of such
Section
in
connection with the financing of the Iceland Acquisition with the
proceeds of 2007 Term Loans, as described below; and
WHEREAS,
the Administrative Agent and the 2007 Term Lender are willing to
agree to such amendments as herein provided, subject to the terms
and conditions of this First Incremental Amendment;
NOW,
THEREFORE, it is agreed:
I.
Amendments to Credit Agreement.
1. The
third paragraph in the preliminary statements to the Credit
Agreement is hereby amended by inserting the text
“Original” immediately preceding the text “Term
Loans” appearing in said paragraph.
2. The
definition of “ Applicable Rate ” appearing in
Section 1.01 of the Credit Agreement is hereby amended by
(i) inserting the text “(w) 2007 Term Loans
maintained as (A) Eurocurrency Rate Loans, 2.50% and
(B) Base Rate Loans 1.50%,” immediately preceding
subclause (x) of the first sentence thereof and
(ii) inserting the text “Original” immediately
preceding the text “Term Loans” appearing in subclause
(x) of the first sentence of said definition.
3. The
definition of “ Specified Transaction ”
appearing in Section 1.01 of the Credit Agreement is hereby
amended by inserting the text “the incurrence of 2007 Term
Loans,” immediately after the text “Incremental Term
Loan,” appearing in said definition.
4. The
definition of “ Transaction ” appearing in
Section 1.01 of the Credit Agreement is hereby amended by
inserting the text “Original” immediately preceding the
text “Term Loans” appearing in said definition.
5.
Section 1.01 of the Credit Agreement is hereby further amended
by (i) deleting the definitions of “ Borrowing
”, “ Class ”, “ Facility
”, “ Term Borrowing ”, “ Term
Commitment ” and “ Tranche ” appearing
therein in their entirety and (ii) inserting the following new
definitions in appropriate alphabetical order:
“
Borrowing ” means a Revolving Credit Borrowing, a
Swing Line Borrowing, an Original Term Borrowing or a 2007 Term
Borrowing, as the context may require.
“
Class ” (a) when used with respect to Lenders,
refers to whether such Lenders are Revolving Credit Lenders,
Original Term Lenders or 2007 Term Lenders, (b) when used with
respect to Commitments, refers to whether such Commitments are
Revolving Credit Commitments, Original Term Commitments or 2007
Term Commitments and (c) when used with respect to Loans or a
Borrowing, refers to whether such Loans, or the Loans comprising
such Borrowing, are Revolving Credit Loans, Original Term Loans or
2007 Term Loans.
“
Facility ” means the Original Term Loans, the 2007
Term Loans, the Revolving Credit Facility, the Swing Line Sublimit
or the Letter of Credit Sublimit, as the context may require.
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“
First Incremental Amendment Effective Date ” has the
meaning specified in the First Incremental Amendment to this
Agreement, dated as of August 17, 2007.
“ Iceland Acquisition
” has the meaning specified in the First Incremental
Amendment.
“ Iceland Business
” has the meaning specified in the First Incremental
Amendment.
“ Original Term
Borrowing ” means a borrowing consisting of simultaneous
Original Term Loans of the same Type and, in the case of
Eurocurrency Rate Loans, having the same Interest Period made by
each of the Original Term Lenders pursuant to Section 2.01.
“ Original Term
Commitment ” means, as to each Original Term Lender, its
obligation to make an Original Term Loan to the Borrower pursuant
to Section 2.01(a) in an aggregate principal amount not to
exceed the amount set forth opposite such Lender’s name on
Schedule 2.01(a) (as in effect on the Closing Date), in each
case under the caption “Original Term Commitment”, as
such amount may be adjusted from time to time in accordance with
this Agreement. The initial aggregate amount of the Original Term
Commitments of Original Term Loans is $390,000,000.
“ Original Term Lender
” means any Lender that has an Original Term Commitment or an
Original Term Loan at such time.
“ Original Term Loan
” has the meaning specified in Section 2.01(a).
“ Term Borrowing ”
means, an Original Term Borrowing or a 2007 Term Borrowing, as
applicable.
“ Term Commitment
” means, an Original Term Commitment or a 2007 Term
Commitment, as applicable.
“ TL Repayment
Percentage ” of any Tranche of Term Loans at any time
shall be a fraction (expressed as a percentage) (x) the
numerator of which is the aggregate principal amount of outstanding
Term Loans of such Tranche at such time and (y) the
denominator of which is the sum of the aggregate principal amount
of all outstanding Term Loans (of all Tranches) at such time.
“ Tranche ” means
a category of Commitments or Credit Extensions thereunder. For
purposes hereof, each of the following comprises a separate
Tranche: (a) the unused Revolving Commitments, the outstanding
Revolving Credit Loans, the outstanding Swing Line Loans and L/C
Obligations in respect of Letters of Credit, (b) the
outstanding Original Term Loans and (c) the outstanding 2007
Term Loans.
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“ 2007 Term Borrowing
” means a borrowing consisting of simultaneous 2007 Term
Loans of the same Type and, in the case of Eurocurrency Rate Loans,
having the same Interest Period made by each of the 2007 Term
Lenders pursuant to Section 2.01.
“ 2007 Term Commitment
” means, as to each 2007 Term Lender, its obligation to make
a 2007 Term Loan to the Borrower pursuant to Section 2.01(a)
in an aggregate principal amount not to exceed the amount set forth
opposite such Lender’s name on Schedule 2.01(a) (as in
effect on the First Incremental Amendment Effective Date), in each
case under the caption “2007 Term Commitment”, as such
amount may be adjusted from time to time in accordance with this
Agreement. The initial aggregate amount of the 2007 Term
Commitments on the First Incremental Amendment Effective Date is
$75,000,000.
“ 2007 Term Lender
” means any Lender that has a 2007 Term Commitment or a 2007
Term Loan at such time.
“ 2007 Term Loan ”
has the meaning specified in Section 2.01(a).
6.
Section 2.01(a) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following
new clause (a) in lieu thereof:
“(a) The Term
Borrowings. Subject to the terms and conditions set forth
herein, (A) each Original Term Lender with an Original Term
Commitment on the Closing Date severally agrees to make to the
Borrower on the Closing Date a single loan denominated in Dollars
in a principal amount equal to such Original Term Lender’s
Original Term Commitment on the Closing Date (each, an “
Original Term Loan ” and, collectively, the “
Original Term Loans ”) and (B) each 2007 Term
Lender with a 2007 Term Commitment on the First Incremental
Amendment Effective Date severally agrees to make to the Borrower
on the First Incremental Amendment Effective Date a single loan
denominated in Dollars in a principal amount equal to such 2007
Term Lender’s 2007 Term Commitment on the First Incremental
Amendment Effective Date (each, a “ 2007 Term Loan
” and, collectively, the “ 2007 Term Loans
”). Amounts borrowed under this Section 2.01(a) and repaid or
prepaid may not be reborrowed. Subject to Section 2.02(c),
Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as
further provided herein.”
7.
Section 2.02(a) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following
new Section 2.02(a) in lieu thereof:
“(a) Each Original Term
Borrowing, each 2007 Term Borrowing, each Revolving Credit
Borrowing, each conversion of Original Term Loans, 2007 Term Loans
or Revolving Credit Loans from one Type to the other, and each
continuation of Eurocurrency Rate Loans shall be made upon the
Borrower’s irrevocable notice to the Administrative Agent,
which may be given by telephone.
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Each such
notice must be received by the Administrative Agent not later than
12:30 p.m. (New York, New York time) (i) three
(3) Business Days prior to the requested date of any Borrowing
or continuation of Eurocurrency Rate Loans or any conversion of
Base Rate Loans to Eurocurrency Rate Loans, and (ii) one
(1) Business Day before the requested date of any Borrowing of
Base Rate Loans or conversion of any Eurocurrency Rate Loans to
Base Rate Loans. Each telephonic notice by the Borrower pursuant to
this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each
Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans shall be in a principal amount of $1,000,000 or a whole
multiple thereof. Except as provided in Sections 2.03(c) and
2.04(c), each Borrowing of or conversion to Base Rate Loans shall
be in a principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof. Each Loan Notice (whether telephonic or
written) shall specify (i) whether the Borrower is requesting
a Original Term Borrowing, a 2007 Term Borrowing, a Revolving
Credit Borrowing, a conversion of Original Term Loans, 2007 Term
Loans or Revolving Credit Loans from one Type to the other, or a
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