SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 31, 1995
TRIAD SYSTEMS CORPORATION
-------------------------
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 0-9505 94-2160013
-------- ------ ----------
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
3055 Triad Drive, Livermore, CA 94550
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(Address of principal executive offices) (Zip Code)
(510) 449-0606
--------------
Registrant's telephone number,
including area code
N/A
---
(Former Name or Former Address,
if Changed Since Last Report)
Item 5. Other Events.
On March 31, 1995, Triad Systems Corporation (the "Registrant")
effected an exchange ("Exchange") of all of the outstanding units ("Units")
(consisting of 1,000,000 shares of the Registrant's Senior Cumulative
Convertible Preferred Stock and associated Warrants to purchase 3.5 million
shares of the Registrant's Common Stock par value $.001 held by entities
affiliated with Richard C. Blum & Associates, L.P. for an aggregate of
$10,000,000 and 2,222,222 shares of Registrant's Common Stock. Following
the Exchange on March 31, 1995, entities affiliated with Richard C. Blum &
Associates, L.P. hold approximately 13% of Registrant's Common Stock.
Richard C. Blum will continue to serve on Registrant's Board of Directors.
In connection with the Exchange, the holders of the units agreed to
Rule 144(e) restrictions under the Securities Act of 1933 on transfers
relating to the shares of Common Stock received in the Exchange. On the
date of the Exchange, the Registrant also paid to holders of the Units
accrued and unpaid dividends through the date of closing, amounting in
the aggregate to $200,000.
The Registrant obtained the consent of holders of its Senior
Fixed Rate Notes and Senior Floating Rate Notes to the Exchange;
modified certain covenants under its indentures governing those respective
debt instruments to provide the Company with additional flexibility; and
modified the mandatory redemption schedule under the Senior Floating Rate
Notes. Registrant also obtained the consent of Comerica Bank-California to
the Exchange and increased the line of credit with such bank.
The description of the transactions contained herein are qualified
in their entirety by reference to the Exchange Agreement between the
Registrant and the holders of the Units, the Consent Agreements with the
holders of the Senior Fixed Rate Notes and the Senior Floating Rate Notes,
respectively, the related First Supplemental Indentures, the Amendment to
Revolving Credit Loan Agreement and Consent, and the Amended Senior
Floating Rate Notes, each of which is attached as an exhibit hereto and
is hereby incorporated by reference herein.
The Registrant effected the Exchange in order to reduce future dividend
obligations and reduce the uncertainty relating to the warrants for
3.5 million shares of the Registrant's Common Stock outstanding prior to
the Exchange. A copy of the press release announcing the completion of the
Exchange is attached hereto as Exhibit 8 and is incorporated herein by
reference.
Item 7. Financial Statements and Exhibits.
Exhibit No. Description
----------- -----------
1 Exchange Agreement and Second Amendment to
Unit Purchase Agreement by and among Triad Systems
Corporation, Richard C. Blum & Associates, L.P.
and certain holders dated March 31, 1995.
2 Consent Agreement between Triad Systems
Corporation and certain holders of the Fixed Rate
Notes dated March 31, 1995.
3 Consent Agreement between Triad Systems
Corporation and the holder of the Floating Rate
Notes dated March 31, 1995.
4 First Supplemental Indenture between Triad
Systems Corporation and BankAmerica National Trust
Company dated March 31, 1995.
5 First Supplemental Indenture between Triad
Systems Corporation and Chase Manhattan Bank N.A.
dated March 31, 1995.
6 Amendment No. Three to Revolving Credit Loan
Agreement and Consent (to Exchange Agreement)
between Triad Systems Corporation, Triad Systems
Financial Corporation and Comerica Bank-California
dated March 31, 1995.
7 Triad Systems Corporation Amended Senior Floating
Rate Note Due 1997 dated March 31, 1995.
8 Press Release dated March 31, 1995.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
Date: May 10, 1995 TRIAD SYSTEMS CORPORATION
(Registrant)
By: /s/STANLEY F. MARQUIS
---------------------
Stanley F. Marquis
Vice President, Finance,
Chief Financial Officer and
Treasurer
Index to Exhibits
Sequentially
Numbered
Exhibit Number Description Page
- -------------- ----------- ----
1 Exchange Agreement and Second Amendment
to Unit Purchase Agreement by and among
Triad Systems Corporation,
Richard C. Blum & Associates, L.P. and
certain holders dated March 31, 1995.
2 Consent Agreement between Triad Systems
Corporation and certain holders of the
Fixed Rate Notes dated March 31, 1995.
3 Consent Agreement between Triad Systems
Corporation and the holder of the
Floating Rate Notes dated March 31, 1995.
4 First Supplemental Indenture between
Triad Systems Corporation and
BankAmerica National Trust Company dated
March 31, 1995.
5 First Supplemental Indenture between
Triad Systems Corporation and Chase
Manhattan Bank N.A. dated March 31, 1995.
6 Amendment No. Three to Revolving Credit Loan
Agreement and Consent (to Exchange Agreement)
between Triad Systems Corporation, Triad
Systems Financial Corporation and Comerica
Bank-California dated March 31, 1995.
7 Triad Systems Corporation Amended Senior
Floating Rate Note Due 1997 dated
March 31, 1995.
8 Press Release dated March 31, 1995.
Exhibit 1
EXCHANGE AGREEMENT
AND
SECOND AMENDMENT
TO
UNIT PURCHASE AGREEMENT
THIS EXCHANGE AGREEMENT AND SECOND AMENDMENT TO UNIT PURCHASE
AGREEMENT ( the " Exchange Agreement") is made as of this 31st day of
March, 1995 by and among TRIAD SYSTEMS CORPORATION, a Delaware corporation
(the "Company"), and RICHARD C. BLUM & ASSOCIATES, L.P., a California
limited partnership ("RCBA") (fka RICHARD C. BLUM & ASSOCIATES, INC, a
California corporation), and the following named purchasers managed or
advised by RCBA: THE COMMON FUND; BK CAPITAL PARTNERS IV, L.P.; BK CAPITAL
PARTNERS III, L.P.; and BK CAPITAL PARTNERS II, L.P. (each a "Purchaser"
and collectively, "Purchasers").
WHEREAS, the Company, RCBA and the Purchasers entered into that
certain Unit Purchase Agreement dated as of July 2, 1992 ("Unit Purchase
Agreement") under which terms the Purchasers purchased and the Company sold
in the aggregate 1,000,000 units ("Units"), with each unit consisting of
one share of the Company's Senior Cumulative Convertible Preferred Stock,
par value $0.001 per share (the "Preferred Stock"), plus a warrant
("Warrant") to purchase 3.5 shares of the Company's common stock, par value
$0.001 per share ("Common Stock"), in consideration of the aggregate sum of
$20,000,000; and
WHEREAS, the Company, RCBA and the Purchasers entered into that
certain First Amendment To Unit Purchase Agreement dated as of August 3,
1992 amending some of the terms of the Unit Purchase Agreement ("First
Amendment"); and
WHEREAS, the Company, RCBA and the Purchasers now desire to enter
into an Exchange Agreement pursuant to which the Purchasers will surrender
and exchange all Units of Preferred Stock and Warrants for the consideration
described below, and to amend certain covenants under the Unit Purchase
Agreement as described below.
NOW THEREFORE, in consideration of the mutual agreements herein, the
parties hereto agree as follows:
ARTICLE 1
Surrender and Exchange of Units
Section 1.1 Surrender and Exchange of Units. Subject to the terms
and conditions of this Agreement, and in reliance upon the representations
and warranties hereinafter set forth, at the Exchange Closing provided for
in Section 1.2 hereof, the Purchasers shall each surrender and deliver to
the Company all outstanding Units held by the Purchasers (such Units are
set forth opposite the respective Purchaser's name on Exhibit A-1 hereto)
(amounting to an aggregate of 1,000,000 Units, comprised of 1,000,000
shares of Preferred Stock and 3,500,000 Warrants) in exchange for the
following (the "Exchange Consideration"): (i) the Company will remit to the
Purchasers a cash payment ("Exchange Payment") equal to the amount set
forth opposite the respective Purchaser's name on Exhibit A-1 (amounting in
the aggregate to $10,000,000); (ii) the Company will remit to the
Purchasers an additional sum of money ("Accrued Dividends") equal to the
amount set forth opposite the respective Purchaser's name on Exhibit A-2
(representing the accrued and unpaid dividends payable on the Preferred
Stock through March 31, 1995 and amounting in the aggregate to $200,000),
and (iii) the Company will issue to each Purchaser, and each Purchaser
shall acquire from the Company, that number of shares of the Company's
common stock ("New Shares") set forth opposite the respective Purchaser's
name on Exhibit A-1 (amounting in the aggregate to 2,222,222 shares of the
Company's common stock).
Section 1.2 Exchange Closing.
(a) Subject to the satisfaction or waiver of the conditions set
forth in this Agreement, the surrender of the Units hereunder in exchange
for the Exchange Consideration (the "Exchange Closing") shall take place at
the law offices of Orrick , Herrington & Sutcliffe, 400 Sansome Street,
San Francisco, California, at 12:01 A.M., on March 31, 1995, or such other
time and place as is mutually agreed upon (the "Exchange Closing Date").
(b) At the Exchange Closing: (i) Purchasers will surrender and
deliver to Company all outstanding original Unit Certificates representing
the Units described in Section 1.1 in full consideration of receipt of the
New Shares, the Exchange Payment and the Accrued Dividends; (ii) the
Company will deliver to Purchasers in full consideration for the
surrendered Units, certificates representing the New Shares registered in
the respective names and denominations prescribed by Purchasers and will
deliver to the Purchasers immediately available funds, by bank check or
wire transfer to such accounts as the Purchasers shall specify, in the
amount of the Exchange Payment and the Accrued Dividend to be paid
hereunder pursuant to Section 1.1.
ARTICLE 2
Representations and Warranties; Legends
2.1 Representations and Warranties of the Company. Except as
set forth in the Schedule of Exceptions attached hereto as Exhibit B, the
Company represents and warrants to and agrees with each Purchaser, as of
the date hereof and as of the Exchange Closing Date, as follows:
(a) Organization, Good Standing and Qualification. The Company is
a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all requisite corporate power
and authority to carry on its business as now conducted and as proposed to
be conducted.
(b) Authorization; No Conflicts; No Default. The Company has full
corporate power and authority to enter into this Exchange Agreement and to
consummate the transactions contemplated hereby. The execution, delivery
and performance of this Exchange Agreement and the consummation of the
transactions contemplated hereby has been duly authorized by the Board of
Directors of the Company. No other corporate proceedings are necessary to
authorize the execution, delivery and performance of this Exchange
Agreement and the transactions contemplated hereby and thereby. This
Exchange Agreement has been duly and validly executed and delivered by the
Company and constitutes a valid and legally binding obligation of the
Company enforceable in accordance with its terms. The execution, delivery
and performance of this Exchange Agreement and the consummation of the
transactions contemplated hereby and the compliance by the Company with any
of the provisions hereof will not conflict with, violate or result in a
breach of any provision of, or constitute a default (or an event which,
with notice or lapse of time or both would constitute a default) under, or
result in the termination of or accelerate the performance required by, or
result in a right of termination or acceleration under, (i) any provision
of the Certificate of Incorporation, bylaws or other governing instruments
of the Company or the articles or certificate of incorporation, bylaws or
other governing instrument of any subsidiary or (ii) any mortgage, note,
indenture, deed of trust, lease, agreement, instrument, permit, concession,
grant, franchise, license, judgment, order, decree, ruling, injunction,
statute, law, ordinance, rule or regulation applicable to the Company, the
Subsidiaries or their respective properties or assets, except for such
conflicts, violations, breaches, defaults, terminations and accelerations
which do not have, or could not be reasonably expected to have, a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(c) Governmental Consents. No consent, approval, order or
authorization of, registration, qualification, designation, declaration or
filing with, any federal, state, local or provincial governmental authority
on the part of the Company is required in connection with valid execution
and delivery of this Exchange Agreement and the consummation of the
transactions contemplated by this Exchange Agreement, other than for
filings required under the Securities Exchange Act of 1934.
(d) Status of Securities. The Common Stock issued pursuant hereto
will, when issued, be duly and validly issued, fully paid and
nonassessable. The issuance of the Common Stock hereunder is not subject to
preemptive rights of any stockholder of the Company.
(e) Capitalization. As of March 15, 1995, the authorized capital
of the Company consisted of (i) l,000,000 shares of preferred stock, par
value $0.01 per share, all of which are issued and outstanding, and
(ii) 50,000,000 shares of Common Stock, par value $0.001 per share, of which
14,351,364 are issued and outstanding. All of the issued and outstanding
shares of the Company's capital stock have been duly and validly authorized
and issued and are fully paid and nonassessable, and are not subject to
preemptive rights. As of the date of this Agreement, there are no
outstanding options, warrants, rights (including conversion and preemptive
rights), or other agreements to purchase capital stock of the Company,
except for an aggregate of 2,840,880 shares subject to options issued to
officers, employees or directors of the Company, 587,000 shares available
for issuance under the Company's employee stock purchase plan, and
3,500,000 Warrants issued to RCBA under the Unit Purchase Agreement.
(f) SEC Reports. Since September 30, 1992, the Company has filed
all reports, registration statements, proxy statements and other materials,
together with any amendments required to be made with respect thereto, that
were required to be filed with the Securities and Exchange Commission
("SEC") under the Exchange Act. The Company has furnished Purchasers copies
of its Annual Report on Form 10-K for the fiscal years ended September 30,
1992, 1993 and 1994 and its Quarterly Report on Form 10-Q for the quarter
ended December 31, 1994 (collectively, the "SEC Reports"), each as filed
with the SEC. On the date of their respective filing none of such SEC
Reports contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
The financial statements contained in the SEC Reports, including in
each case the related notes, fairly present the financial position of the
Company and its Subsidiaries as of respective dates of said balance sheets
and the results of operations of the Company and its Subsidiaries for the
respective periods covered by said statements of income and changes in
financial position (subject, in the case of the unaudited statements, to
routine year-end audit adjustments), and have been prepared in accordance
with generally accepted accounting principles (except for the elimination
of certain footnote information in the unaudited statements) consistently
applied by the Company through the periods involved. There has been no
change in the business, condition or operations (financial or otherwise) of
the Company and its Subsidiaries taken as a whole from that set forth in
the balance sheet of the Company as of December 31, 1994 (the "Unaudited
Balance Sheet") that would have a material adverse effect. Except as
reflected in the financial statements contained in the SEC Reports and the
notes thereto, the Company has no liabilities, absolute or contingent,
material to the Company and its Subsidiaries taken as a whole, other than
ordinary course liabilities incurred since December 31, 1994 in connection
with the conduct of the business of the Company, consistent with past
practices.
(g) Actions Pending; Compliance with Law. There is no action, suit,
investigation or proceeding pending or, to the knowledge of the Company,
threatened by any private party, any public official or governmental
authority, against the Company or any Subsidiary or any of their respective
properties or assets by or before any court, arbitrator or governmental
body, department, commission, board, bureau, agency or instrumentality,
which questions the validity of this Agreement or any action taken or to be
taken pursuant hereto, or which is reasonably likely to have a material
adverse effect on the Company and its Subsidiaries taken as a whole, and
the Company and its Subsidiaries are not in default in any material respect
with respect to any judgment, order, writ, injunction, decree or award, and
the business of the Company is presently being conducted so as to comply in
all material respects with applicable federal, state and local governmental
laws and regulations, all to the extent necessary to avoid any material
adverse effect on the Company and its Subsidiaries taken as a whole.
(h) Absence of Certain Changes. Except for transactions
contemplated by this Agreement, since December 31, 1994 the Company and the
Subsidiaries have conducted their respective businesses only in the ordinary
course, consistent with prior practice, and there has not been (i) any
change in the financial condition, results of operations, assets, liabilities
or business of the Company and the Subsidiaries which has had, or may have, a
material adverse effect on the Company and its Subsidiaries taken as a
whole or (ii) any damage, destruction, theft or other casualty loss
(whether or not covered by insurance) which has had, or is likely to have,
a material adverse effect on the Company and its Subsidiaries taken as a
whole.
(i) Disclosure. Neither this Agreement nor any certificate or
disclosure statement delivered by or on behalf of the Company in connection
with the transactions contemplated hereby contains any untrue statement of
a material fact or omits to state a material fact necessary in order to
make the statements contained herein and therein not misleading.
Section 2.2 Representations and Warranties of RCBA and The
Purchasers. RCBA and each Purchaser severally as to its own affairs, and
not jointly, represents and warrants to and agrees with the Company, as of
the Exchange Closing Date, as follows:
(a) Organization. RCBA is a limited partnership duly organized
and validly existing under the laws of the State of California. RCBA has the
requisite power and authority to enter into this Exchange Agreement and to
carry out its obligations hereunder. Each of the Purchasers which is a
corporation or a partnership is duly organized and validly existing under
the laws of the jurisdiction of its organization. Each Purchaser has the
requisite power and authority to enter into this Exchange Agreement and to
carry out its obligations hereunder.
(b) Authorization. The execution and delivery of this Exchange
Agreement and the consummation of the transactions contemplated hereby have
been authorized by all necessary action on behalf of RCBA and each
Purchaser, and this Exchange Agreement constitutes the valid and legally
binding obligation of RCBA and each Purchaser. At the Exchange Closing,
RCBA will either (i) have a valid and binding advisory agreement which
authorizes RCBA to enter into this Exchange Agreement on behalf of each
Purchaser or (ii) will be the general partner of a Purchaser with full
power and authority under a limited partnership agreement which authorizes
RCBA to enter into this Agreement on behalf of each Purchaser.
(c) Governmental Consents. No consent, approval, order or
authorization of, registration, qualification, designation, declaration or
filing with, any federal, state, local or provincial governmental authority
on the part of RCBA or any Purchaser is required in connection with the
valid execution and delivery of this Exchange Agreement and the
consummation of the transactions contemplated by this Exchange Agreement
other than for filings required under the Securities Exchange Act of 1934.
Section 2.3 Transfer Restrictions.
(a) So long as Purchasers or Subject Transferees (as defined in
the Unit Purchase Agreement) have rights pursuant to Sections 3.4, 3.5 or
3.6 of the Unit Purchase Agreement, RCBA, each Purchaser and Subject
Transferee shall be subject to the Company's insider trading policies, a
copy of which has been previously provided in writing to RCBA.
(b) Until March 31, 1996, RCBA and the Purchasers agree that sales
or transfers of New Shares must be made in compliance with the volume
limitations set forth in Rule 144(e) under the Securities Act of 1933, as
amended, regardless of whether Rule 144 is otherwise applicable to the sale
or transfer.
Section 2.4 Legends. Each certificate representing the New Shares
shall be endorsed with the legends set forth on Exhibit C.
ARTICLE 3
Amendments to Unit Purchase Agreement
Section 3.1 Amendment. The parties agree that the Unit Purchase
Agreement is hereby amended as follows:
(a) The provisions of Section 3.11 ("Restrictions on Transfer")
of the Unit Purchase Agreement (as amended by the First Amendment) shall be
deemed to apply to the New Shares issued at the Exchange Closing and to the
holders of the New Shares, as if the New Shares had been issued on exercise
of the Warrants, provided that the restrictions in Section 3.11 will not
apply to sales of New Shares to the public made in reliance on Rule 144,
and provided further that the term "twenty (20)" in paragraph 3.11(a)(ii)
shall be amended to read "five (5)" and that the term "twenty-first (21st)"
in paragraph 3.11(a)(iii) shall be amended to read "ninth (9th)" and
finally that the term "ninety (90)" in paragraph 3.11(a)(iv) shall be
amended to read "thirty (30)"; and
(b) Section 3.14 ("Restrictions on Distributions") of the Unit
Purchase Agreement is hereby deleted in its entirety, effective as of the
Exchange Closing.
Section 3.2 Effect on Prior Agreement. Except as provided herein,
the Unit Purchase Agreement and the First Amendment shall continue in full
force and effect.
ARTICLE 4
Conditions
Section 4.1 Conditions to Purchasers' Obligations. The obligations
of Purchasers to exchange the Units for the New Shares at the Exchange
Closing are conditioned upon the satisfaction or waiver of each of the
following conditions precedent:
(a) Representations and Warranties. The representations and
warranties of the Company contained in this Exchange Agreement shall be
true and correct in all material respects on and as of the Exchange Closing
Date with the same effect as though such representations and warranties had
been made on and as of the Exchange Closing Date.
(b) Performance. The Company shall have performed and complied
with all agreements, obligations and conditions contained in this Exchange
Agreement that are required to be performed or complied with by it on or
before the Exchange Closing Date.
(c) Compliance Certificate. The Company shall have delivered to
Purchasers a certificate, dated the Exchange Closing Date, signed by its
chief executive officer or chief financial officer, certifying that the
conditions set forth in this Section 4.1 have been fulfilled and further
stating that there has been no material adverse change in the business,
prospects, operations, assets or financial condition of the Company since
December 31, 1994.
(d) Proceedings. All corporate and other proceedings to be taken
by the Company in connection with the transactions contemplated hereby shall
have been duly and validly taken by the Company and all documents incident
thereto shall be reasonably satisfactory in form and substance to
Purchasers and their counsel.
(e) No Adverse Action or Decision or Injunction. There shall be
no action, suit, investigation or proceeding pending or threatened which
(i) seeks to restrain, enjoin, prevent the consummation of or otherwise
affect the transactions contemplated by this Exchange Agreement or the
issuance of the New Shares, or (ii) seeks to recover damages or to obtain
other relief in connection with any such transactions, and there shall not be
in effect any order, decree or injunction of a court or agency of competent
jurisdiction which enjoins or prohibits consummation of the transactions
contemplated hereby and thereby.
(f) Opinion of Counsel. Purchasers shall have received from
Patrick J. Kernan, Corporate Counsel of the Company, an opinion dated the
Closing Date, substantially in the form of Exhibit D.
Section 4.2 Conditions to the Company's Obligations. The
obligation of the Company to exchange the Units for the New Shares and the
payments of the amounts set forth in Paragraph 1.1 above at the Exchange
Closing is subject to satisfaction or waiver of each of the following
conditions precedent:
(a) Representations and Warranties. The representations and
warranties of RCBA and Purchasers contained in this Exchange Agreement
shall be true and correct in all material respects on and as of the
Exchange Closing Date with the same effect as though such representations
and warranties had been made on and as of the Exchange Closing Date.
(b) Performance. RCBA and Purchasers shall have performed and
complied with all agreements, obligations and conditions contained in this
Exchange Agreement that are required to be performed or complied with by
them on or before the Exchange Closing Date.
(c) Compliance Certificate. Purchasers shall have delivered to
the Company a certificate, dated the Exchange Closing Date, certifying that
the conditions set forth in this Section 4.2 have been satisfied.
(d) Proceedings. All corporate and other proceedings to be taken
by RCBA and Purchasers in connection with the transactions contemplated
hereby shall have been duly and validly taken by RCBA and Purchasers and all
documents incident thereto shall be reasonably satisfactory in form and
substance to the Company and its counsel.
(e) No Adverse Action or Decision or Injunction. There shall be
no action, suit, investigation or proceeding pending or threatened which
(i) seeks to restrain, enjoin, prevent the consummation of or otherwise
affect the transactions contemplated by this Exchange Agreement or the
issuance of the New Shares, or (ii) seeks to recover damages or to obtain
other relief in connection with any such transactions, and there shall not be
in effect any order, decree or injunction of a court or agency of competent
jurisdiction which enjoins or prohibits consummation of the transactions
contemplated hereby and thereby.
(f) Consents and Completion of Other Transactions. Simultaneously
with or prior to the Exchange of the Units for the Exchange Consideration,
the following entities will have given the Company consent to the
transaction contemplated by this Exchange Agreement and have entered into
amendments of the following agreements reasonably satisfactory to the
Company:
(i) U.S. Leasing- Senior Floating Rate Note Indenture;
(ii) Majority of Holders - Senior Fixed Rate Note
Indenture; and
(iii) Comerica Bank of California - Revolving Credit
Facility.
(g) Houlihan Lokey Howard & Zukin ("HLHZ") Opinion. HLHZ shall
have delivered to the Company an opinion dated the Closing Date that the
Exchange is fair to the Company's public stockholders from a financial point
of view and such opinion is reasonably satisfactory in form and substance to
the Company and its counsel.
ARTICLE 5
Miscellaneous
Section 5.1 Successors and Assigns. The terms and conditions of
this Exchange Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties. Nothing in this
Exchange Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and
assigns any rights, remedies or obligations, or liabilities under or by
reason of this Exchange Agreement, except as expressly provided in this
Agreement.
Section 5.2 Governing Law. This Exchange Agreement shall be
governed by and construed under the laws of the State of California
(irrespective of its choice of law principles).
Section 5.3 Counterparts. This Exchange Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
Section 5.4 Titles and Subtitles. The titles and subtitles used
in this Exchange Agreement are used for convenience only and are not to be
considered in construing or interpreting this Exchange Agreement.
Section 5.5 Notices. Unless otherwise provided, any notice
required or permitted under this Exchange Agreement shall be given in
writing and shall be deemed effectively given upon personal delivery to the
party to be notified or if sent by confirmed facsimile, or when received if
given by Federal Express or other nationally recognized courier service or
upon the date reflected in the return receipt if deposited with the United
States Post Office, by registered or certified mail, postage prepaid and
addressed to the party to be notified at the address indicated for such
party on the signature page hereof, or at such other address as such party
may designate by ten (10) days' advance written notice to the other
parties.
Section 5.6 Public Announcements. Subject to each party's
disclosure obligations imposed by law and the confidentiality provisions
contained herein, each of the parties hereto will cooperate with each other
in the development and distribution of all news releases and other public
information disclosures with respect to this Exchange Agreement and any of
the transactions contemplated hereby, and no party hereto will make any
news release or disclosure without first consulting with each other party
hereto.
Section 5.7 Attorneys' Fees. If any action at law or in equity
is necessary to enforce or interpret the terms of this Exchange Agreement or
the agreements contemplated hereby, the prevailing party shall be entitled
to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
Section 5.8 Amendments and Waivers. Any term of this Exchange
Agreement may be amended and the observance of any term of this Exchange
Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively), only with the written consent of
the Company and prior to the Exchange Closing, RCBA or, after the Exchange
Closing, holders of a majority of the New Shares issued pursuant to the
terms hereof. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each holder of any securities issued under
this Exchange Agreement at the time outstanding, each future holder of all
such securities, and the Company.
IN WITNESS WHEREOF, each of the parties hereto has duly executed
and delivered this Exchange Agreement as of the date first above written.
TRIAD SYSTEMS CORPORATION
By: /s/ STANLEY F. MARQUIS
-----------------------
Title: VP Finance, CFO
RICHARD C. BLUM & ASSOCIATES, L.P.
By: /s/ A.C. DEAN JR.
------------------
Title: Managing Director of Investments
THE COMMON FUND
By: Richard C. Blum & Associates, L.P.,
Adviser and Attorney-In-Fact
By: /s/ A.C. DEAN JR.
------------------
Title: Managing Director of Investments
BK CAPITAL PARTNERS IV, L.P.
By: Richard C. Blum & Associates, L.P.,
its General Partner
By: /s/ A.C. DEAN JR.
------------------
Title: Managing Director of Investments
BK CAPITAL PARTNERS III, L.P.
By: Richard C. Blum & Associates, L.P.,
its General Partner
By: /s/ A.C. DEAN JR.
------------------
Title: Managing Director of Investments
BK CAPITAL PARTNERS II, L.P.
By: Richard C. Blum & Associates, L.P.,
its General Partner
By: /s/ A.C. DEAN JR.
------------------
Title: Managing Director of Investments
EXHIBIT A-1
Purchaser Number of New Shares
--------- --------------------
The Common Fund 1,111,111
BK Capital Partners IV, L.P. 500,000
BK Capital Partners III, L.P. 500,000
BK Capital Partners II, L.P. 111,111
Total 2,222,222
EXHIBIT A-2
Purchaser Surrendered Exchange Price Accrued
Units Dividend
- --------- ----------- -------------- --------
The Common Fund 500,000 $ 5,000,000 $100,000
(Certificate No. 5)
BK Capital Partners IV, L.P. 225,000 $ 2,250,000 $ 45,000
(Certificate No. 2)
BK Capital Partners III, L.P. 225,000 $ 2,250,000 $ 45,000
(Certificate No. 3)
BK Capital Partners II, L.P. 50,000 $ 500,000 $ 10,000
(Certificate No. 4)
Totals 1,000,000 $10,000,000 $200,000
EXHIBIT B
None
EXHIBIT C
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD,
TRANSFERRED OR ASSIGNED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE
WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF COUNSEL
FOR THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY,
STATING THAT SUCH SALE, TRANSFER OR ASSIGNMENT IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
THE SALE OR TRANSFER OF THE COMMON STOCK REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO A RIGHT OF FIRST OFFER OPTION AND A PROHIBITION ON SALES TO
COMPETITORS SET FORTH IN THE UNIT PURCHASE AGREEMENT DATED JULY 2, 1992, AS
AMENDED FROM TIME TO TIME, BETWEEN THE CORPORATION AND THE REGISTERED
HOLDER (OR ITS PREDECESSOR IN INTEREST), A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICE OF THE ISSUER, PROVIDED THAT SUCH RESTRICTIONS SHALL NOT
APPLY TO SALES MADE IN ACCORDANCE WITH RULE 144(f) and (g) UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
PURSUANT TO THE EXCHANGE AGREEMENT DATED MARCH 31, 1995, AS AMENDED FROM
TIME TO TIME, BETWEEN THE CORPORATION AND THE REGISTERED HOLDER (OR ITS
PREDECESSOR IN INTEREST), A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
OFFICE OF THE ISSUER, UNTIL MARCH 31,1996, THE SALE OR TRANSFER OF THE
COMMON STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE VOLUME
LIMITATIONS SET FORTH IN RULE 144(e), REGARDLESS OF WHETHER RULE 144 IS
OTHERWISE APPLICABLE TO THE SALE OR TRANSFER.
This certificate also evidences and entitles the broker hereof to certain
Rights as set forth in the Amended and Restated Rights Agreement between
Triad Systems Corporation and Chemical Trust Company of California, as
Rights Agent, dated as of August 3, 1992 (as amended from time to time in
accordance with its terms, the "Rights Agreement"), the terms of which are
incorporated herein by reference and a copy of which is on file at the
principal executive office of Triad Systems Corporation. Under certain
circumstances, as set forth in the Rights Agreement, such Rights will be
evidenced by separate certificate and will no longer be evidenced by this
certificate. Triad Systems Corporation will mail to the holder of this
certificate a copy of the Rights Agreement without charge within five days
after receipt by it of a written request therefor. Under certain
circumstances as provided in the Rights Agreement, Rights issued to or
beneficially owned by Acquiring Persons or their Associates or Affiliates
(as defined in the Rights Agreement) or any subsequent holder of such
Rights may be limited as provided in Section 11(a)(ii) of the Rights
Agreement.
Exhibit 2
CONSENT AGREEMENT
This CONSENT AGREEMENT (the "Consent Agreement"), dated as of
March 31, 1995, is entered into among Triad Systems Corporation, a
Delaware corporation ("Triad") and the undersigned holders of the Fixed
Rate Notes referred to below.
WHEREAS, Triad and Security Pacific National Trust Company
(New York) (predecessor-in-interest to BankAmerica National Trust Company)
(the "Trustee"), entered into an Indenture, dated as of August 1, 1992
(the "Indenture") pursuant to which Triad issued $25,000,000 in aggregate
principal amount of 12.25% Senior Notes due 1999 (the "Fixed Rate Notes")
(all capitalized terms used herein which are not otherwise defined shall
have the meanings ascribed thereto in the Indenture);
WHEREAS, Triad and the initial Holders of the Fixed Rate Notes
entered into a Purchase Agreement dated as of August 1, 1992 (the
"Purchase Agreement"), pursuant to which Triad sold, and such Holders
purchased, the Fixed Rate Notes;
WHEREAS, Triad desires to amend the Indenture in order to amend
certain covenants and to repurchase shares of its outstanding preferred
stock and warrants in exchange (the "Exchange") for $10,000,000 and
2,222,222 shares of its common stock;
WHEREAS, to effect such amendments, Triad desires a majority of
the Holders of the outstanding Fixed Rate Notes to enter into this
Consent Agreement (as required by Section 9.2 of the Indenture) and the
Trustee to enter into the First Supplemental Indenture, dated as of
March 31, 1995 (the "First Supplemental Indenture"), substantially in
the form of Exhibit A attached hereto; and
WHEREAS, the Holders of a majority of the outstanding Fixed Rate
Notes are willing to consent to the Exchange, to the Trustee entering into
the First Supplemental Indenture and to the amendments provided therein,
upon the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration the receipt
of which is hereby acknowledged, Triad and the undersigned Holders agree
to the following:
SECTION 1. CONSENT AGREEMENT AND CONDITIONS PRECEDENT. The
undersigned Holders of Fixed Rate Notes consent to the First Supplemental
Indenture, expressly subject to and only upon the satisfaction of the
following conditions:
1.1 Triad and the Holders of a majority of the outstanding
principal amount of Fixed Rate Notes shall have executed this Consent
Agreement.
1.2 As of the date hereof, no Default or Event of Default
under the Indenture shall exist or be continuing, and as of the date
hereof, after giving effect to the amendments set forth in the First
Supplemental Indenture and the Exchange, no Default or Event of Default
shall exist or be continuing.
1.3 The representations and warranties of Triad referred to
in Section 5 of the Purchase Agreement, shall be true and complete in all
material respects, as if made on and as of the date hereof (except as to
those representations and warranties which are made as of a specific date,
which shall be true and complete in all material respects as of such
specific date and that references to the Private Placement Agreement shall
be deemed to refer to Triad's reports filed pursuant to the Securities
Exchange Act of 1934).
1.4 The representations of Triad referred to in Section 2
hereof shall be true and complete in all material respects.
1.5 The holders of the requisite amount of Triad's Senior
Floating Rate Notes due 1997 and Comercia Bank-California shall have
provided consents substantially in the forms of Exhibit B and Exhibit C
attached hereto, respectively.
1.6 The Trustee shall have received an Officers' Certificate
from Triad, dated as of March 31, 1995, certifying that the conditions set
forth in this Section 1 and further certifying as to such other matters as
the Holders may reasonably request.
1.7 Triad shall have delivered an executed Request to the
Trustee in the form of Exhibit D attached hereto, together with a duly
executed Officers' Certificate and an Opinion of Counsel in the form
attached thereto as Exhibits 1 and 2, respectively.
1.8 The Trustee, on behalf of each Holder of the Fixed Rate
Notes, shall have received a consent fee equal to .825% of the principal
amount of Notes held by such Holder.
1.9 Triad agrees to pay within 30 days after request all cost
and expenses incurred by the Holders in connection with the preparation and
execution of this Consent Agreement (including reasonable attorney fees and
disbursements of Orrick, Herrington & Sutcliffe).
Notwithstanding the foregoing conditions, the undersigned Holders
hereby direct the Trustee to execute the First Supplemental Indenture upon
receipt of the items described in 1.6, 1.7 and 1.8, provided that the
direction to the Trustee and this consent may be revoked by the Holders of
at least 25% of the outstanding Fixed Rate Notes by notice to the Trustee
and Triad if any conditions set forth in this Section are not met in
any material respect whereupon this Consent and the First Supplemental
Indenture shall thereupon be null and void and shall be deemed to have no
further effect.
SECTION 2. REPRESENTATIONS OF TRIAD. Triad, by its execution and
delivery of this Consent Agreement, hereby represents and warrants to the
Holders of the Fixed Rate Notes as follows:
2.1 No Default or Event of Default under the Indenture exists
or is continuing as of the date hereof or after giving effect to the
amendments and waiver set forth in the First Supplemental Indenture and
the Exchange.
2.2 The representations and warranties of Triad referred to
in Section 5 of the Purchase Agreement are true and correct and complete
in all material respects as if made on the date hereof (except as to those
representations and warranties made as of a specific date, which are true
and correct and materially complete as of such date and that references to
the Private Placement Agreement shall be deemed to refer to Triad's
reports filed pursuant to the Securities Exchange Act of 1934).
2.3 No dissolution proceedings with respect to Triad and its
Subsidiaries have been commenced or are contemplated, and there has been
no material adverse change in the business, conditions, prospects, or
operations (financial or otherwise) of Triad and its Subsidiaries, taken
as a whole, since December 31, 1994.
2.4 This Consent Agreement and the First Supplemental Indenture
and the other documents entered into by Triad in connection with the
transactions contemplated hereby and the Exchange each has been duly
authorized, executed and delivered by Triad and each constitutes a legal,
valid and binding obligation of Triad enforceable against Triad in
accordance with its terms.
2.5 Neither this Consent Agreement nor any certificate, report
or other statement delivered to Holders of the Fixed Rate Notes by or on
behalf of Triad or any of its Subsidiaries in connection with the
negotiation of this Consent Agreement, the First Supplemental Indenture or
the transactions contemplated hereby or thereby, contains any untrue
statement of a material fact or, taken as a whole, omit to state a material
fact necessary to make the statements contained herein or therein
not misleading.
SECTION 3. MISCELLANEOUS.
3.1 It is expressly understood and agreed that the amendments
contained in the First Supplemental Indenture shall not constitute either
(a) a modification, alteration or amendment of the terms, conditions, and
covenants of the Indenture or the Fixed Rate Notes, all of which shall
remain unchanged and in full force and effect, except as otherwise
specifically set forth in the First Supplemental Indenture, or (b) a
waiver, release or limitation upon the exercise by the Holders of the
Fixed Rate Notes or the Trustee of any of the rights, legal or equitable,
under the Indenture or the Purchase Agreement except as to matters as to
which the undersigned Holders expressly consent and only for the relevant
time period set forth in the First Supplemental Indenture. Nothing herein
is intended or shall be construed to release or relieve Triad in any
way or to any extent from any of the obligations, covenants or agreements
imposed upon Triad by the Indenture or the Fixed Rate Notes or otherwise,
or from the consequences of any default thereunder, except as to matters
as to which the undersigned expressly agree in the First Supplemental
Indenture.
3.2 The Indenture and the Fixed Rate Notes are in all
respects ratified and confirmed, and all the terms, conditions and
provisions thereof shall be and remain in full force and effect.
3.3 The execution of this Consent Agreement by the undersigned
Holders shall not in any way constitute, or be construed as, a waiver of
any provision of, or of any Default or Event of Default under, the
Indenture except as expressly provided in the First Supplemental Indenture,
nor shall it constitute an agreement or obligation of the undersigned
Holders to give its consent to any future waiver, consent or amendment of
the Indenture or to any future transaction which would, absent consent of
the undersigned Holders, constitute a Default or Event of Default under
the Indenture.
3.4 This Consent Agreement may be executed in as many
counterparts as may be deemed necessary or convenient and by the different
parties hereto on separate counterparts, and each of which, when so
executed, shall be deemed to be an original, but all such counterparts
shall constitute but one and the same agreement.
3.5 This Consent Agreement shall be deemed effective as of
March 31, 1995, subject to the proviso contained in the last paragraph of
Section 1.
IN WITNESS WHEREOF, the parties have executed this Consent
Agreement, this 31st day of March, 1995.
TRIAD SYSTEMS CORPORATION
By: /s/ JAMES R. PORTER
--------------------
Name: James R. Porter
Title: President & CEO
THE HOLDERS OF FIXED RATE NOTES
USL CAPITAL CORPORATION
By: /s/ CRAIG BRUZZONE
--------------------
Name: Craig Bruzzone
Title: V.P.
Aggregate Principal Amount of
Fixed Rate Notes: $5,000,000
----------
FULL & CO.
By: /s/ WILLIAM G. SWAN
--------------------
Name: William G. Swan
Title: Assistant Vice President
Aggregate Principal Amount of
Fixed Rate Notes: $2,500,000
----------
FULL & CO.
By: /s/ G. PATRICK MCENROE
----------------------
Name: G. Patrick McEnroe
Title: Assistant Vice President
Aggregate Principal Amount of
Fixed Rate Notes: $3,000,000
----------
Exhibit 3
CONSENT AGREEMENT
This CONSENT AGREEMENT (the "Consent Agreement"), dated as of
March 31, 1995, is entered into among Triad Systems Corporation, a
Delaware corporation ("Triad") and the undersigned holder of the Floating
Rate Notes referred to below.
WHEREAS, Triad and the Chase Manhattan Bank, N.A. (the "Trustee"),
entered into an Indenture, dated as of August 1, 1992 (the "Indenture")
pursuant to which Triad issued $15,500,000 in aggregate principal amount
of Senior Floating Rate Notes due 1997 (the "Floating Rate Notes") (all
capitalized terms used herein which are not otherwise defined shall have
the meanings ascribed thereto in the Indenture);
WHEREAS, Triad and the initial Holder of the Floating Rate Notes
entered into a Purchase Agreement dated as of August 1, 1992 (the
"Purchase Agreement"), pursuant to which Triad sold, and such Holder
purchased, the Floating Rate Notes;
WHEREAS, Triad desires to amend the Indenture in order to amend
certain covenants and terms of the Floating Rate Notes and to repurchase
shares of its outstanding preferred stock and warrants in exchange (the
"Exchange") for $10,000,000 and 2,222,222 shares of its common stock;
WHEREAS, to effect such amendments, Triad desires the Holder of all
of the outstanding Floating Rate Notes to enter into this Consent Agreement
(as required by Section 9.2 of the Indenture) and the Trustee to enter into
the First Supplemental Indenture, dated as of March 31, 1995 (the "First
Supplemental Indenture"), substantially in the form of Exhibit A attached
hereto; and
WHEREAS, the Holder of the Floating Rate Notes is willing to
consent to the Exchange, to the Trustee entering into the First Supplemental
Indenture and to the amendments provided therein, upon the terms and
conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged, Triad and the undersigned Holder agree to
the following:
SECTION 1. CONSENT AGREEMENT AND CONDITIONS PRECEDENT. The
undersigned Holder of Floating Rate Notes consents to the First Supplemental
Indenture, expressly subject to and only upon the satisfaction of the
following conditions:
1.1 Triad and the Holder of all of the outstanding
principal amount of Floating Rate Notes shall have executed this Consent
Agreement.
1.2 As of the date hereof, no Default or Event of Default
under the Indenture shall exist or be continuing, and as of the date
hereof, after giving effect to the amendments set forth in the First
Supplemental Indenture and the Exchange, no Default or Event of Default
shall exist or be continuing.
1.3 The representations and warranties of Triad referred
to in Section 5 of the Purchase Agreement, shall be true and complete in
all material respects, as if made on and as of the date hereof (except as
to those representations and warranties which are made as of a specific
date, which shall be true and complete in all material respects as of such
specific date and that references to the Private Placement Agreement shall
be deemed to refer to Triad's reports filed pursuant to the Securities
Exchange Act of 1934).
1.4 The representations of Triad referred to in Section 2
hereof shall be true and complete in all material respects.
1.5 The holders of the requisite amount of Triad's 12.25%
Senior Notes due 1999 and Comercia Bank-California shall have provided
consents substantially in the forms of Exhibit B and Exhibit C attached
hereto, respectively.
1.6 The Trustee shall have received an Officers'
Certificate from Triad, dated as of March 31, 1995, certifying that the
conditions set forth in this Section 1 and further certifying as to such
other matters as the Holder may reasonably request.
1.7 Triad shall have delivered an executed Request to the
Trustee in the form of Exhibit D attached hereto, together with a duly
executed Officers' Certificate and an Opinion of Counsel in the form
attached thereto as Exhibits 1 and 2, respectively.
1.8 The Holder of the Floating Rate Notes shall have
received a consent fee equal to .825% of the principal amount of Notes
held by such Holder.
1.9 Triad agrees to pay within 30 days after request all
cost and expenses incurred by the Holder in connection with the preparation
and execution of this Consent Agreement (including reasonable attorney
fees and disbursements of Orrick, Herrington & Sutcliffe).
Notwithstanding the foregoing conditions, the undersigned Holders
hereby direct the Trustee to execute the First Supplemental Indenture upon
receipt of the items described in 1.6, 1.7 and 1.8, provided that the
direction to the Trustee and this consent may be revoked by the Holders of
at least 25% of the outstanding Floating Rate Notes by written notice to
the Trustee and Triad if any conditions set forth in this Section are not
met in any material respect whereupon this consent and the First
Supplemental Indenture shall thereupon be null and void and shall be deemed
to have no further effect.
SECTION 2. REPRESENTATIONS OF TRIAD. Triad, by its execution
and delivery of this Consent Agreement, hereby represents and warrants to
the Holders of the Floating Rate Notes as follows:
2.1 No Default or Event of Default under the Indenture
exists or is continuing as of the date hereof or after giving effect to
the amendments and waiver set forth in the First Supplemental Indenture
and the Exchange.
2.2 The representations and warranties of Triad referred
to in Section 5 of the Purchase Agreement are true and correct and
complete in all material respects as if made on the date hereof (except as
to those representations and warranties made as of a specific date, which
are true and correct and materially complete as of such date and that
references to the Private Placement Agreement shall be deemed to refer to
Triad's reports filed pursuant to the Securities Exchange Act of 1934).
2.3 No dissolution proceedings with respect to Triad and
its Subsidiaries have been commenced or are contemplated, and there has
been no material adverse change in the business, conditions, prospects,
or operations (financial or otherwise) of Triad and its Subsidiaries,
taken as a whole, since December 31, 1994.
2.4 This Consent Agreement and the First Supplemental
Indenture and the other documents entered into by Triad in connection with
the transactions contemplated hereby and the Exchange each has been duly
authorized, executed and delivered by Triad and each constitutes a legal,
valid and binding obligation of Triad enforceable against Triad in
accordance with its terms.
2.5 Neither this Consent Agreement nor any certificate,
report or other statement delivered to Holders of the Floating Rate Notes
by or on behalf of Triad or any of its Subsidiaries in connection with the
negotiation of this Consent Agreement, the First Supplemental Indenture or
the transactions contemplated hereby or thereby, contains any untrue
statement of a material fact or, taken as a whole, omit to state a material
fact necessary to make the statements contained herein or therein not
misleading.
SECTION 3. MISCELLANEOUS.
3.1 It is expressly understood and agreed that the
amendments contained in the First Supplemental Indenture shall not
constitute either (a) a modification, alteration or amendment of the terms,
conditions, and covenants of the Indenture or the Floating Rate Notes,
all of which shall remain unchanged and in full force and effect, except
as otherwise specifically set forth in the First Supplemental Indenture,
or (b) a waiver, release or limitation upon the exercise by the Holder
of the Floating Rate Notes or the Trustee of any of the rights, legal
or equitable, under the Indenture or the Purchase Agreement except as to
matters as to which the undersigned Holder expressly consents and only
for the relevant time period set forth in the First Supplemental
Indenture. Nothing herein is intended or shall be construed to release
or relieve Triad in any way or to any extent from any of the obligations,
covenants or agreements imposed upon Triad by the Indenture or the
Floating Rate Notes or otherwise, or from the consequences of any default
thereunder, except as to matters as to which the undersigned expressly
agree in the First Supplemental Indenture.
3.2 The Indenture and the Floating Rate Notes are in all
respects ratified and confirmed, and all the terms, conditions and
provisions thereof shall be and remain in full force and effect.
3.3 The execution of this Consent Agreement by the undersigned
Holder shall not in any way constitute, or be construed as, a waiver of
any provision of, or of any Default or Event of Default under, the
Indenture except as expressly provided in the First Supplemental Indenture,
nor shall it constitute an agreement or obligation of the undersigned Holder
to give its consent to any future waiver, consent or amendment of the
Indenture or to any future transaction which would, absent consent of the
undersigned Holder, constitute a Default or Event of Default under the
Indenture.
3.4 This Consent Agreement may be executed in as many
counterparts as may be deemed necessary or convenient and by the different
parties hereto on separate counterparts, and each of which, when so
executed, shall be deemed to be an original, but all such counterparts
shall constitute but one and the same agreement.
3.5 This Consent Agreement shall be deemed effective as
of March 31, 1995, subject to the proviso contained in the last paragraph
of Section 1.
IN WITNESS WHEREOF, the parties have executed this Consent
Agreement, this 31st day of March, 1995.
TRIAD SYSTEMS CORPORATION
By: /s/ JAMES R. PORTER
--------------------
Name: James R. Porter
Title: President & CEO
THE HOLDER OF FLOATING RATE NOTES:
USL CAPITAL CORPORATION
By: /s/ CRAIG BRUZZONE
--------------------
Name: Craig Bruzzone
Title: V.P.
Aggregate Principal Amount of
Floating Rate Notes: $15,500,000
-----------
Exhibit 4
FIRST SUPPLEMENTAL INDENTURE
between
TRIAD SYSTEMS CORPORATION
and
BANKAMERICA NATIONAL TRUST COMPANY
(Successor-in-interest to Security Pacific National Trust
Company (New York)),
as Trustee
Dated as of March 31, 1995
Amending the Indenture, dated as of August 1, 1992,
Between Said Parties
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE, made and entered into as of
the 31st day of March, 1995, by and between TRIAD SYSTEMS CORPORATION,
a Delaware corporation ("Triad"), and BANKAMERICA NATIONAL TRUST COMPANY,
successor-in-interest to Security Pacific National Trust Company (New York)
(the "Trustee"),
WITNESSETH:
WHEREAS, Triad and the Trustee's predecessor heretofore executed
that certain Indenture, dated as of August 1, 1992 (such Indenture, as
supplemented and amended hereby, being herein called the "Indenture"),
pursuant to which Triad issued $25,000,000 in aggregate principal amount
of 12.25% Senior Notes due 1999 (the "Fixed Rate Notes");
WHEREAS, Triad has requested that certain provisions of the
Indenture be amended as hereinafter provided;
WHEREAS, pursuant to Section 9.2 of the Indenture, Triad's
proposed amendments to the Indenture may be effected only with the consent
of the holders of a majority of the outstanding Fixed Rate Notes and there
is currently outstanding $19,300,000 principal amount of Fixed Rate Notes;
WHEREAS, the holders of a majority of the outstanding Fixed Rate
Notes and Triad have entered into that certain Consent Agreement, dated as
of March 31, 1995 (the "Consent Agreement") pursuant to which such holders
consented to Triad's proposed amendment to the Indenture as set forth in
this Supplemental Indenture, subject to Triad's satisfaction of certain
terms and conditions set forth in Section 1 of the Consent Agreement; and
WHEREAS, all acts and proceedings required by law, by the Consent
Agreement and by the Indenture necessary to make this First Supplemental
Indenture a valid and binding agreement for the uses and purposes herein
set forth, in accordance with its terms, have been done and taken; and the
execution and delivery of this First Supplemental Indenture have been in
all respects duly authorized;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH,
that Triad and the Trustee, with the consent of a majority of the holders
of the Fixed Rate Notes, agree as follows:
ARTICLE I
DEFINITIONS AND MISCELLANEOUS
SECTION 1.1. Definitions. All capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Indenture.
SECTION 1.2. Captions. Any captions, titles or headings
preceding the text of any Article or Section herein to this First
Supplemental Indenture or any copy hereof are solely for convenience
of reference and shall not constitute part of this First Supplemental
Indenture or affect its meaning, construction or effect.
SECTION 1.3. Execution of Several Counterparts. This First
Supplemental Indenture may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to be
an original, and any and all such counterparts, shall together constitute
but one and the same instrument.
SECTION 1.4. Invalidity of Certain Provisions. In case any
one or more of the provisions contained in this First Supplemental
Indenture should be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provisions contained in this First Supplemental Indenture, and, to the
extent and only to the extent that any such provision is invalid, illegal
or unenforceable, this First Supplemental Indenture shall be construed as
if such provision had never been contained herein.
SECTION 1.5. Ratification of Indenture. As heretofore amended
and supplemented and amended hereby, the Indenture and the trusts conferred
thereby are in all respects confirmed, and the Indenture, all indentures
supplemental thereto and this First Supplemental Indenture shall be read,
taken and considered as one instrument for any and all purposes. All
provisions of the Indenture not otherwise amended hereby shall remain in
full force and effect.
SECTION 1.6. Effect of Amendment. From and after the execution
of this First Supplemental Indenture, the Indenture shall be deemed to be
modified and amended in accordance herewith, and the respective rights,
duties and obligations of Triad thereunder shall thereafter be determined,
exercised and enforced as specified in the Indenture subject in all
respects to the modification and amendment contained herein; provided,
however that if the conditions to the Consent Agreement were not met in
any material respect, upon written notice to the Trustee and Triad by the
Holders of at least 25% in principal amount of the outstanding Fixed Rate
Notes, this First Supplemental Indenture shall have no force and effect.
SECTION 1.7. Governing Law. This First Supplemental Indenture
shall be governed by the laws of the State of New York.
ARTICLE II
AMENDMENTS OF INDENTURE
SECTION 2.1. Amendments to Definitions in the Indenture.
(a) The definition of "Consolidated Net Income" shall be
amended by inserting in the sixth line after the word "interest" and before
the " ," the following:
"(including any Real Estate Joint Venture)"
(b) The definition of "Consolidated Net Worth" shall be amended
by inserting in the second to last line after the word "sales" and before
the word "subsequent" the following:
"(including gains related to any Real Estate Joint Venture)"
(c) Clause (iv) of the definition of "Permitted Funded
Indebtedness" shall be amended to read in full as follows:
"(iv) (a) all lease discounting transactions by Triad Financial
or any Foreign Subsidiary in the ordinary course of business,
including lease securitization transactions, and (b) Indebtedness
not to exceed $15,000,000 secured by existing leases described
in (a) above;"
(d) The definition of "Qualified Investments" shall be amended
by deleting the word "and" which appears immediately before clause (iv)
and by adding the following at the end of the definition:
"; and (v) any Real Estate Joint Venture"
(e) The following new definition of "Real Estate Joint Venture"
shall be added:
"Real Estate Joint Venture" shall mean one or more transactions
whereby the Company or one of its Subsidiaries contributes Real
Estate Assets (the "Contributed Assets") to a limited partnership
(the "Real Estate Limited Partnership") in exchange for a limited
partnership interest. The Real Estate Limited Partnership shall
be formed for the purpose of developing the Contributed Assets and
may incur indebtedness to finance such development; provided that
such indebtedness may not be guaranteed or otherwise supported by
the Company or any of its Subsidiaries. The general partner of the
Real Estate Limited Partnership may not be the Company or any of
its Subsidiaries. The Company and its Subsidiaries will have no
liability or other obligations (including support agreements) with
respect to the Real Estate Limited Partnership other than the
contribution of the Contributed Assets. The Contributed Assets will
consist of undeveloped land located at Triad Park and, may not have
a book value or a fair market value, in the aggregate for all Real
Estate Ventures, of greater than $2 million. For purposes of this
Indenture, the Real Estate Joint Venture shall be deemed to be an
Affiliate of the Company.
SECTION 2.2. Amendment to Section 4.7. - Limitation on Restricted
Payments.
Section 4.7 of the Indenture shall be amended to read in full
as follows:
SECTION 4.7. Limitation on Restricted Payments.
(1) The Company shall not declare or pay any
dividend on, or make any distribution to the holders
of, any shares of Capital Stock of the Company, other
than dividends or distributions payable in its Capital
Stock (other than Disqualified Capital Stock); (2)
neither the Company nor any Subsidiary of the Company
shall repay, redeem, or otherwise acquire or retire for
value any shares of Capital Stock of the Company; (3)
neither the Company nor any Subsidiary of the Company
shall repay, redeem or otherwise acquire or retire for
value or defease, prior to scheduled maturity or any
other scheduled repayment, any Funded Indebtedness
junior in right of payment of principal, premium, if
any, and interest to the Securities or which when
originally issued was scheduled to mature after the
maturity of the Securities; (4) the Company shall not,
and shall not permit any Subsidiary to, make any Excess
Real Estate Investment; and (5) the Company shall not
make any Investments, other than Qualified Investments
((1), (2), (3), (4) and (5) collectively are
hereinafter referred to as "Restricted Payments") if at
the time of such Restricted Payment, or after giving
effect thereto, (a) a Default or an Event of Default
shall have occurred and be continuing, or (b) the
Company would not be able to incur $1.00 of additional
Funded Indebtedness under the Earnings Coverage Ratio
test contained in Section 4.10, or (c) the aggregate
amount expended for all such Restricted Payments sub-
sequent to March 31, 1995 (the "Trigger Date"), shall
exceed the sum of (A) $2,000,000 and (B) any positive
amount resulting from the sum of (i) 25% of Adjusted
Consolidated Net Income for each quarter beginning
after the Trigger Date minus 100% if Adjusted
Consolidated Net Income for such quarter is negative;
provided that if the Company's Fixed Charge Coverage
Ratio for the applicable quarter is greater than 3.0 to
1.0, such percentage, in the event of income, and not
loss, shall increase to 50% and, (ii) the aggregate net
proceeds, including cash received by the Company from
any Person other than a Subsidiary of the Company from
the issue or sale, after the Trigger Date, of Capital
Stock (other than Disqualified Capital Stock) of the
Company including any such shares issued upon exercise
of any warrants or conversions of any Indebtedness
issued after the issuance of the Securities; provided,
however, that clauses (b) and (c) will not prevent (y)
the retirement of any shares of the Company's Capital
Stock in exchange for, or out of the proceeds of the
substantially concurrent sale (other than to a
Subsidiary of the Company) of, other shares of its
Capital Stock (other than Disqualified Capital Stock)
or (z) the payment of any dividend within 90 days after
the date of its declaration if at said date of
declaration such payment would have complied with the
provisions hereof. It is intended that this provision
shall not be affected by the repurchase of the Company
Preferred Stock and the Company's outstanding Common
Stock Purchase Warrants on the Trigger Date in exchange
for $10 million plus the payment of accrued dividends
of $200,000 and the issuance of 2,222,222 shares of the
Company's Common Stock (the "1995 Transaction").
SECTION 2.3. Amendment to Section 4.8. Maintenance of
Consolidated Net Worth.
Section 4.8(a) of the Indenture is amended to change the
reference in second to last line from "June 30, 1995" to "June 30, 1996"
and in the last line from "July 1, 1995" to "July 1, 1996".
SECTION 2.4. Amendment to Section 4.9. Limitation on
Transactions with Affiliates.
Section 4.9 of the Indenture is amended by inserting at the end
of the first sentence the following: "or to the 1995 Transaction."
SECTION 2.5. Amendment to Section 4.15. Dispositions
of Real Property.
Section 4.15 of the Indenture is amended by inserting immediately
after "(i)" in the fourth line the following: "except in the case of a
transfer to a Real Estate Joint Venture,"
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be signed by their officers
thereunto duly authorized as of the day and year first above
written.
TRIAD SYSTEMS CORPORATION
By: /s/ JAMES R. PORTER
--------------------
Name: James R. Porter
Title: President & CEO
Attest:
/s/ STANLEY F. MARQUIS
--------------------
Stanley F. Marquis, Secretary
[SEAL]
BANKAMERICA NATIONAL TRUST COMPANY
(Successor-in-interest to Security
Pacific National Trust Company (New
York)), as Trustee
By: /s/ JOHN P. MCGURN
--------------------
Name: John P. McGurn
Title: Assistant Vice President
Attest:
/s/ GEOVANNI BARRIS
- --------------------
Geovanni Barris
[SEAL]
Exhibit 5
FIRST SUPPLEMENTAL INDENTURE
between
TRIAD SYSTEMS CORPORATION
and
CHASE MANHATTAN BANK, N.A.,
as Trustee
Dated as of March 31, 1995
Amending the Indenture, dated as of August 1, 1992,
Between Said Parties
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE, made and entered into as of
the 31st day of March, 1995, by and between TRIAD SYSTEMS CORPORATION,
a Delaware corporation ("Triad"), and THE CHASE MANHATTAN BANK, N.A.,
a national banking association organized and existing under and by virtue
of the laws of the United States (the "Trustee"),
WITNESSETH:
WHEREAS, Triad and the Trustee's predecessor heretofore executed
that certain Indenture, dated as of August 1, 1992 (such Indenture, as
supplemented and amended hereby, being herein called the "Indenture"),
pursuant to which Triad issued $15,500,000 in aggregate principal amount
of Senior Floating Rate Notes due 1997 (the "Floating Rate Notes");
WHEREAS, Triad has requested that certain provisions of the
Indenture be amended as hereinafter provided;
WHEREAS, pursuant to Section 9.2 of the Indenture, Triad's
proposed amendments to the Indenture may be effected only with the consent
of the holders of all of the outstanding Floating Rate Notes and there are
currently outstanding $15,500,000 principal amount of Floating Rate Notes;
WHEREAS, the holders of all of the outstanding Floating Rate Notes
and Triad have entered into that certain Consent Agreement, dated as of
March 31, 1995 (the "Consent Agreement") pursuant to which such holders
consented to Triad's proposed amendment to the Indenture as set forth in
this Supplemental Indenture, subject to Triad's satisfaction of certain
terms and conditions set forth in Section 1 of the Consent Agreement; and
WHEREAS, all acts and proceedings required by law, by the Consent
Agreement and by the Indenture necessary to make this First Supplemental
Indenture a valid and binding agreement for the uses and purposes herein
set forth, in accordance with its terms, have been done and taken; and the
execution and delivery of this First Supplemental Indenture have been in
all respects duly authorized;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH,
that Triad and the Trustee, with the consent of all of the holders of the
Floating Rate Notes, agree as follows:
ARTICLE I
DEFINITIONS AND MISCELLANEOUS
SECTION 1.1. Definitions. All capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Indenture.
SECTION 1.2. Captions. Any captions, titles or headings
preceding the text of any Article or Section herein to this First
Supplemental Indenture or any copy hereof are solely for convenience of
reference and shall not constitute part of this First Supplemental
Indenture or affect its meaning, construction or effect.
SECTION 1.3. Execution of Several Counterparts. This First
Supplemental Indenture may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an
original, and any and all such counterparts, shall together constitute
but one and the same instrument.
SECTION 1.4. Invalidity of Certain Provisions. In case any one
or more of the provisions contained in this First Supplemental Indenture
should be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions contained in this First Supplemental Indenture, and, to the
extent and only to the extent that any such provision is invalid, illegal
or unenforceable, this First Supplemental Indenture shall be construed as
if such provision had never been contained herein.
SECTION 1.5. Ratification of Indenture. As heretofore amended
and supplemented and amended hereby, the Indenture and the trusts conferred
thereby are in all respects confirmed, and the Indenture, all indentures
supplemental thereto and this First Supplemental Indenture shall be read,
taken and considered as one instrument for any and all purposes. All
provisions of the Indenture not otherwise amended hereby shall remain in
full force and effect.
SECTION 1.6. Effect of Amendment. From and after the execution
of this First Supplemental Indenture, the Indenture shall be deemed to be
modified and amended in accordance herewith, and the respective rights,
duties and obligations of Triad thereunder shall thereafter be determined,
exercised and enforced as specified in the Indenture subject in all
respects to the modification and amendment contained herein; provided,
however that if the conditions to the Consent Agreement were not met in
any material respect, upon written notice to the Trustee and Triad by the
Holders of at least 25% principal amount of the outstanding Floating Rate
Notes, this First Supplemental Indenture shall have no force and effect.
SECTION 1.7. Governing Law. This First Supplemental
Indenture shall be governed by the laws of the State of New York.
ARTICLE II
AMENDMENTS OF INDENTURE
SECTION 2.1. Amendments to Definitions in the Indenture.
(a) The definition of "Consolidated Net Income" shall be amended
by inserting in the fifth line after the word "interest" and before
the " ," the following:
"(including any Real Estate Joint Venture)"
(b) The definition of "Consolidated Net Worth" shall be amended
by inserting in the second to last line after the word "sales" and before
the word "subsequent" the following:
"(including gains related to any Real Estate Joint Venture)"
(c) Clause (iv) of the definition of "Permitted Funded
Indebtedness" shall be amended to read in full as follows:
"(iv) (a) all lease discounting transactions by Triad Financial
or any Foreign Subsidiary in the ordinary course of business,
including lease securitization transactions, and (b) Indebtedness
not to exceed $15,000,000 secured by existing leases described
in (a) above;"
(d) The definition of "Qualified Investments" shall be amended
by deleting the word "and" which appears immediately before clause (iv)
and by adding the following at the end of the definition:
"; and (v) any Real Estate Joint Venture"
(e) The following new definition of "Real Estate Joint
Venture" shall be added:
"Real Estate Joint Venture" shall mean one or more transactions
whereby the Company or one of its Subsidiaries contributes Real
Estate Assets (the "Contributed Assets") to a limited partnership
(the "Real Estate Limited Partnership") in exchange for a
limited partnership interest. The Real Estate Limited
Partnership shall be formed for the purpose of developing the
Contributed Assets and may incur indebtedness to finance such
development; provided that such indebtedness may not be guaranteed
or otherwise supported by the Company or any of its Subsidiaries.
The general partner of the Real Estate Limited Partnership may not
be the Company or any of its Subsidiaries. The Company and its
Subsidiaries will have no liability or other obligations
(including support agreements) with respect to the Real Estate
Limited Partnership other than the contribution of the
Contributed Assets. The Contributed Assets will consist of
undeveloped land located at Triad Park and, may not have a book
value or a fair market value, in the aggregate for all Real
Estate Ventures, of greater than $2 million. For purposes of
this Indenture, the Real Estate Joint Venture shall be deemed to
be an Affiliate of the Company.
SECTION 2.2. Amendment to Section 4.7. - Limitation on
Restricted Payments.
Section 4.7 of the Indenture shall be amended to read in full
as follows:
SECTION 4.7. Limitation on Restricted Payments.
(1) The Company shall not declare or pay any dividend
on, or make any distribution to the holders of, any shares of
Capital Stock of the Company, other than dividends or
distributions payable in its Capital Stock (other than
Disqualified Capital Stock); (2) neither the Company nor any
Subsidiary of the Company shall repay, redeem, or otherwise
acquire or retire for value any shares of Capital Stock of the
Company; (3) neither the Company nor any Subsidiary of the
Company shall repay, redeem or otherwise acquire or retire for
value or defease, prior to scheduled maturity or any other
scheduled repayment, any Funded Indebtedness junior in right of
payment of principal, premium, if any, and interest to the
Securities or which when originally issued was scheduled to
mature after the maturity of the Securities other than payments
of principal on the Fixed Rate Notes required to be made by
Sections 4.8, 4.12, 4.14 or 4.15 of the Indenture relating
thereto; (4) the Company shall not, and shall not permit any
Subsidiary to, make any Excess Real Estate Investment; and
(5) the Company shall not make any Investments, other than
Qualified Investments ((1), (2), (3), (4) and (5) collectively
are hereinafter referred to as "Restricted Payments") if at the
time of such Restricted Payment, or after giving effect thereto,
(a) a Default or an Event of Default shall have occurred and be
continuing, or (b) the Company would not be able to incur $1.00
of additional Funded Indebtedness under the Earnings Coverage
Ratio test contained in Section 4.10, or (c) the aggregate amount
expended for all such Restricted Payments subsequent to March 31,
1995 (the "Trigger Date"), shall exceed the sum of (A) $2,000,000
and (B) any positive amount resulting from the sum of (i) 25% of
Adjusted Consolidated Net Income for each quarter beginning after
the Trigger Date minus 100% if Adjusted Consolidated Net Income
for such quarter is negative; provided that if the Company's
Fixed Charge Coverage Ratio for the applicable quarter is greater
than 3.0 to 1.0, such percentage, in the event of income, and not
loss, shall increase to 50% and, (ii) the aggregate net proceeds,
including cash received by the Company from any Person other than
a Subsidiary of the Company from the issue or sale, after the
Trigger Date, of Capital Stock (other than Disqualified Capital
Stock) of the Company including any such shares issued upon
exercise of any warrants or conversions of any Indebtedness
issued after the issuance of the Securities; provided, however,
that clauses (b) and (c) will not prevent (y) the retirement of
any shares of the Company's Capital Stock in exchange for, or out
of the proceeds of the substantially concurrent sale (other than
to a Subsidiary of the Company) of, other shares of its Capital
Stock (other than Disqualified Capital Stock) or (z) the payment
of any dividend within 90 days after the date of its declaration
if at said date of declaration such payment would have complied
with the provisions hereof. It is intended that this provision
shall not be affected by the repurchase of the Company Preferred
Stock and the Company's outstanding Common Stock Purchase
Warrants on the Trigger Date in exchange for $10 million plus the
payment of accrued dividends of $200,000 and the issuance of
2,222,222 shares of the Company's Common Stock (the "1995
Transaction").
SECTION 2.3. Amendment to Section 4.8. Maintenance of
Consolidated Net Worth.
Section 4.8(a) of the Indenture is amended to change the
reference in second to last line from "June 30, 1995" to "June 30, 1996"
and in the last line from "July 1, 1995" to "July 1, 1996".
SECTION 2.4. Amendment to Section 4.9. Limitation on Transactions
with Affiliates.
Section 4.9 of the Indenture is amended by inserting at the end
of the first sentence the following: "or to the 1995 Transaction."
SECTION 2.5. Amendment to Section 4.15. Dispositions of
Real Property.
Section 4.15 of the Indenture is amended by inserting immediately
after "(i)" in the fourth line the following: "except in the case of a
transfer to a Real Estate Joint Venture,"
SECTION 2.6. Amendment to Section 3.8. Mandatory
Redemption and the Form of Note.
(a) Section 3.8 of the Indenture is amended to read in full
as follows:
SECTION 3.8. Mandatory Redemption.
The Securities are subject to redemption on
August 1, 1995 and August 1, 1996 through the operation of the
mandatory redemption provided by this Section 3.8. The Company
will make mandatory redemption payments sufficient to retire by
redemption on such mandatory redemption dates Securities with an
aggregate principal amount equal to $3,750,000 and $5,875,000,
respectively, of the aggregate principal amount of the Securities
issued under this Indenture at a redemption price equal to 100%
of the principal amount thereon plus accrued interest to the date
of redemption. Mandatory redemptions shall be made pursuant to
the provisions of Sections 3.1 through 3.6 hereof. The amounts
required to be redeemed hereunder shall be reduced by the amounts
of any optional redemptions pursuant to Section 3.7 hereof, with
any such optional redemptions being applied to reduce first the
amount of the mandatory redemption on August 1, 1995 and second
the amount of the mandatory redemption on August 1, 1996.
(b) Section 6 of the form of Senior Note attached as
Exhibit A to the Indenture shall be amended to read in full as
follows:
The Company will be required to redeem on August 1, 1995
and August 1, 1996, $3,750,000 and $5,875,000, respectively, of the
principal amount of Securities at a redemption price of 100% of
principal amount plus accrued interest to the redemption date. The
amounts required to be redeemed hereunder shall be reduced by the
amounts of any optional redemptions pursuant to paragraph 5 hereof,
with any such optional redemptions being applied to reduce first
the amount of the mandatory redemption on August 1, 1995 and second
the amount of the mandatory redemption on August 1, 1996.
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be signed by their officers
thereunto duly authorized as of the day and year first above written.
TRIAD SYSTEMS CORPORATION
By: /s/ JAMES R. PORTER
--------------------
Name: James R. Porter
Title: President & CEO
Attest:
/s/ STANLEY F. MARQUIS
- ----------------------
Stanley F. Marquis, Secretary
[SEAL]
THE CHASE MANHATTAN BANK, NATIONAL
ASSOCIATION, as Trustee
By: /s/ JOHN MYNTTINEN
--------------------
Name: John Mynttinen
Title: Corporate Trust Officer
Attest:
/s/ SHEIK WILTSHIRE
- --------------------
Assistant Secretary
[SEAL]
Exhibit 6
AMENDMENT NUMBER THREE TO
REVOLVING CREDIT LOAN AGREEMENT
THIS AMENDMENT NUMBER THREE TO REVOLVING CREDIT LOAN AGREEMENT
(this "Amendment") dated as of March 31, 1995 is entered into by and among
TRIAD SYSTEMS CORPORATION, a Delaware corporation (the "Borrower"), TRIAD
SYSTEMS FINANCIAL CORPORATION, a California corporation ("TSFC"), and
COMERICA BANK-CALIFORNIA (formerly known as Plaza Bank of Commerce), a
California banking corporation (the "Bank").
WITNESSETH:
WHEREAS, the Borrower and the Bank entered into that certain
Revolving Credit Loan Agreement dated as of June 30, 1992, as amended by
Amendment Number One dated as of December 31, 1993 and Amendment Number
Two dated as of September 30, 1994 (as the same may be further amended or
modified, the "Agreement");
WHEREAS, as a condition to entering into the Agreement, TSFC
guaranteed the payment and performance of all of the Borrower's obligations
under the Agreement pursuant to that certain Guaranty dated as of
June 30, 1992 (the "Guaranty"); and
WHEREAS, the Borrower has requested that the Bank amend the
Agreement as hereinafter provided, and the Bank is willing to so amend the
Agreement subject to the terms, provisions and conditions of this Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the Borrower, TSFC and the Bank agree as follows:
1. Capitalized terms used in this Amendment and not otherwise
defined shall have the respective meanings set forth in the Agreement.
2. The definition of "Commitment Amount" set forth in
Section 1.1 of the Agreement is hereby amended to read in its entirety as
follows:
"Commitment Amount" shall mean, as of any applicable date of
determination, the amount as set forth below:
Increase/
(Decrease) in
Commitment Commitment
Amount Amount Determination Date
------------ -------------- ------------------
$15,000,000 Effective Date through 10/31/92
$14,875,000 ($125,000) 11/01/92 through 01/31/93
$14,750,000 ($125,000) 02/01/93 through 04/30/93
$14,625,000 ($125,000) 05/01/93 through 07/31/93
$14,500,000 ($125,000) 08/01/93 through 10/31/93
$14,291,667 ($208,333) 11/01/93 through 01/31/94
$14,083,334 ($208,333) 02/01/94 through 04/30/94
$13,875,000 ($208,334) 05/01/94 through 07/31/94
$13,666,667 ($208,333) 08/01/94 through 10/31/94
$13,375,000 ($291,667) 11/01/94 through 01/31/95
$13,083,334 ($291,666) 02/01/95 through 03/30/95
$17,500,000 ($4,416,666) 03/31/95 through 04/30/95
$16,750,000 ($750,000) 05/01/95 through 07/31/95
$16,000,000 ($750,000) 08/01/95 through 10/31/95
$15,250,000 ($750,000) 11/01/95 through 01/31/96
$14,500,000 ($750,000) 02/01/96 through 04/30/96
$13,750,000 ($750,000) 05/01/96 through 07/31/96
$13,000,000 ($750,000) 08/01/96 through 10/31/96
$12,250,000 ($750,000) 11/01/96 through 01/31/97
$11,500,000 ($750,000) 02/01/97 through 04/30/97
$10,750,000 ($750,000) 05/01/97 through 07/31/97
$0 ($10,750,000) 08/01/97
3. The definition of "Disqualified Capital Stock" set forth in
Section 1.1 of the Agreement is hereby amended to read in its entirety as
follows:
"Disqualified Capital Stock" shall mean, as of any applicable
date of determination, any Capital Stock of a Person which by its
terms (or by the terms of any security into which it is convertible
or for which it is exchangeable), or upon the happening of any
event, matures, is mandatorily redeemable, or is otherwise
required to be paid pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the Termination Date.
4. The definition of "Excess Line" set forth in Section 1.1 of the
Agreement is hereby amended to read in its entirety as follows:
"Excess Line" shall mean, as of any applicable date of
determination, the amount as set forth below:
Excess Line Determination Date
----------- ------------------
$5,000,000 Effective Date through 10/31/92
$4,875,000 11/01/92 through 01/31/93
$4,750,000 02/01/93 through 04/30/93
$4,625,000 05/01/93 through 07/31/93
$4,500,000 08/01/93 through 10/31/93
$4,291,667 11/01/93 through 01/31/94
$4,083,334 02/01/94 through 04/30/94
$3,875,000 05/01/94 through 07/31/94
$3,666,667 08/01/94 through 10/31/94
$3,375,000 11/01/94 through 01/31/95
$3,083,334 02/01/95 through 03/30/95
$7,500,000 03/31/95 through 04/30/95
$6,750,000 05/01/95 through 07/31/95
$6,000,000 08/01/95 through 10/31/95
$5,250,000 11/01/95 through 01/31/96
$4,500,000 02/01/96 through 04/30/96
$3,750,000 05/01/96 through 07/31/96
$3,000,000 08/01/96 through 10/31/96
$2,250,000 11/01/96 through 01/31/97
$1,500,000 02/01/97 through 04/30/97
$750,000 05/01/97 through 07/31/97
$0 08/01/97
5. Section 1.1 of the Agreement is hereby amended to add the
following definition, in proper alphabetical sequence, which reads in its
entirety as follows:
"Net Income After Taxes" shall mean, for any fiscal period,
the net income after income taxes of a Person for that period as
determined in accordance with GAAP.
6. The definition of "Preferred Dividends" set forth in Section 1.1
of the Agreement is hereby amended to read in its entirety as follows:
"Preferred Dividends" shall mean, for any fiscal period, all
dividends paid by the Borrower through and including March 31, 1995
on any preferred stock of the Borrower.
7. Section 6.6 of the Agreement is hereby amended to read in its
entirety as follows:
6.6 Maintain Net Worth. On a consolidated basis for the Borrower
and its consolidated Subsidiaries, maintain, as of the end of each
of the Borrower's fiscal quarters hereunder, a Net Worth of not
less than the amounts specified during the periods specified below,
plus one hundred percent (100%) of all capital, whether in cash,
property or otherwise, contributed to or otherwise received by the
Borrower or any Subsidiary after the Effective Date:
(a) Negative $7,500,000 from the Effective Date through and
including June 30, 1993;
(b) $0 from July 1, 1993 through and including September 29,
1994;
(c) $7,500,000 from September 30, 1994 through and including
March 30, 1995, and
(d) Thereafter, an amount equal to $4,000,000 and increasing
as of the last day of each of the Borrower's fiscal quarters
hereunder, beginning June 30, 1995, by eighty percent (80%) of
Net Income After Taxes (on a cumulative basis but without taking
into account any loss in any fiscal quarter).
8. Section 6 of the Agreement is hereby amended to add a new
Section 6.13 which reads in its entirety as follows:
6.13 Maintain Profitability. On a consolidated basis for the
Borrower and its consolidated Subsidiaries, maintain Net Income
After Taxes of not less than $1 for each and every fiscal
quarter hereunder.
9. Section 7.2 of the Agreement is hereby amended to read in its
entirety as follows:
7.2 Stock Acquisition. Purchase, redeem, retire or otherwise
acquire any of the shares of its Capital Stock, or make any
commitment to do so, except for (a) the retirement of any shares
of the Borrower's Capital Stock in exchange for, or out of the
proceeds of the substantially concurrent sale of (other than to
a Subsidiary of the Borrower), other shares of its Capital Stock
(other than Disqualified Capital Stock), and (b) the retirement
on or before March 31, 1995 of the Convertible Preferred Stock and
all warrants to acquire shares of the Borrower's Capital Stock
which are held by Richard C. Blum & Associates, Inc. for a total
consideration that shall not exceed Ten Million Dollars
($10,000,000) cash and Two Million Two Hundred Twenty-Two
Thousand Two Hundred Twenty-Two (2,222,222) shares of common
Capital Stock of the Borrower.
10. Section 8.1.3 of the Agreement is hereby amended to read in
its entirety as follows:
8.1.3 Noncompliance With Bank Agreement. If the Borrower or
any of its Subsidiaries shall fail to perform, in the time and
manner required, any of its obligations or covenants under, or
shall fail to comply in any material way with any of the provisions
of, this Agreement or any other agreement with the Bank to which
it may be a party. Notwithstanding anything to the contrary contained
in this Agreement, a violation of Sections 6.6, 6.7, 6.8, 6.9,
6.13 or 7.9 shall not be an Event of Default until the Bank shall
give the Borrower notice thereof in writing.
11. Section 9.9 of the Agreement is hereby amended to read in its
entirety as follows:
9.9 Notices. All notices and communications provided for
herein or in any document contemplated hereby or required by law
to be given shall be in writing (unless expressly provided to the
contrary) and, if personally delivered, effective when delivered
at the address below or, in the case of mailing, effective two (2)
Business Days after sending by first class mail, postage prepaid,
addressed as follows: (a) if to the Borrower, to: Treasurer,
Triad Systems Corporation, 3055 Triad Drive, Livermore,
California, 94550-9559, and (b) if to the Bank, to: Ms.
Lori S. Edwards, Comerica Bank-California, 333 West Santa Clara
Street, San Jose, California, 95113, or to such address as
a party shall have designated to the other in writing in accordance
with this action. The giving of at least five (5) days notice before
the Bank shall take any action described in any notice shall
conclusively be deemed reasonable for all purposes; provided, that
this shall not be deemed to require the Bank to give five (5) days
notice or any notice if not specifically required in this Agreement.
12. TSFC joins in executing this Amendment for the purpose of
consenting hereto and hereby ratifies, reaffirms and confirms the Guaranty.
13. The Borrower hereby represents and warrants to the Bank that
(a) the representations and warranties contained in the Agreement are true
in all material respects on and as of the date of this Amendment, and
(b) no Default has occurred and is continuing.
14. Except as specifically amended pursuant to the foregoing
paragraphs of this Amendment, all recitals, representations, warranties,
covenants, undertakings, promises, indemnities, terms, conditions and
provisions of the Agreement shall remain in full force and effect and
shall be and remain unaffected by this Amendment.
15. The Borrower agrees to reimburse the Bank for all reasonable
costs and expenses incurred by it in connection with this Amendment,
including the reasonable fees and expenses of the Bank's counsel with
respect thereto.
16. This Amendment shall become effective when the Bank shall
have received all of the following:
(a) Counterparts of this Amendment signed by the Borrower, TSFC
and the Bank.
(b) The Revolving Credit Note in the form attached hereto as
Exhibit A duly signed by an Authorized Officer of the Borrower. Such
promissory note shall constitute the Revolving Credit Note as defined in
and for the purpose of the Agreement and shall be deemed to have amended
and restated the Revolving Credit Note previously executed and delivered
by the Borrower under the Agreement.
(c) A copy of the resolutions duly adopted by the Boards of
Directors of the Borrower and TSFC authorizing the execution, delivery
and performance of this Amendment and, in the case of the Borrower, of
the new Revolving Credit Note, certified by the Secretary or Assistant
Secretary of the Borrower and TSFC, respectively, together with an
incumbency certificate as to the incumbency and genuine signatures of
the officers of the Borrower and TSFC signing this Amendment.
(d) Evidence satisfactory to the Bank that the Convertible
Preferred Stock and all warrants to acquire shares of the Borrower's
Capital Stock which are held by Richard C. Blum & Associates, Inc. have
been surrendered either simultaneously with or prior to the effectiveness
of this Amendment.
(e) All other certificates, consents, opinions and other documents
which may be reasonably requested by the Bank relating to the existence
of the Borrower and TSFC, the corporate authority for and the validity of
this Amendment, and any other matters relevant hereto, all in form and
substance satisfactory to the Bank.
(f) Payment by the Borrower of a non-refundable amendment fee
of $12,500.
17. This Amendment may be executed in any number of counterparts
and any party hereto may execute any counterpart, each of which when
executed and delivered will be deemed to be but one and the same instrument.
The execution of this Amendment will not become effective until counterparts
hereof have been executed by all the parties hereto.
18. This Amendment shall be governed by, and construed and enforced
in accordance with, the internal laws of the State of California without
regard to principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their duly authorized officers as of the day and year
first written above.
TRIAD SYSTEMS CORPORATION
By: /s/ STANLEY F. MARQUIS
----------------------
Its: Vice President Finance
TRIAD SYSTEMS FINANCIAL CORPORATION
By: /s/ STANLEY F. MARQUIS
----------------------
Its: President
COMERICA BANK-CALIFORNIA
(formerly known as Plaza Bank of Commerce)
By: /s/ LORI EDWARDS
----------------
Its: First Vice President
CONSENT
WHEREAS, Triad Systems Corporation, a Delaware corporation (the
"Borrower"), and Comerica Bank-California (formerly known as Plaza Bank of
Commerce), a California banking corporation, entered into that certain
Revolving Credit Loan Agreement dated as of June 30, 1992, as amended (the
"Agreement");
WHEREAS, the Agreement provided that "Permitted Indebtedness" shall
include indebtedness represented by the Borrower's 12.25% Senior Notes due
1999 and Senior Floating Rate Notes due 1997 (collectively, the "Notes"),
all is in effect on the Effective Date (as defined in the Agreement);
WHEREAS, the Borrower proposes to amend certain terms of the Notes by
entering into the First Supplemental Indenture between the Borrower and
Chase Manhattan, N.A., as trustee dated as of March 31, 1995 and the First
Supplemental Indenture between the Borrower and BankAmerica Trust Company of
New York, as trustee, dated as of March 31, 1995, attached as Exhibits A
and B, respectively (collectively, the "Supplemental Indentures");
WHEREAS, the Bank is willing to consent to the amendment of the Notes
pursuant to the Supplemental Indentures;
NOW, THEREFORE, the Bank hereby consents to the amendments to the
Notes pursuant to the terms of the Supplemental Indentures.
IN WITNESS WHEREOF, the undersigned has executed this Consent this
31st day of March, 1995.
COMERICA BANK-CALIFORNIA
By: /s/ LORI EDWARDS
-----------------
Its: First Vice President
Exhibit 7
Number: R PRINCIPAL AMOUNT: $
Cusip No.: 895818 AC 6
TRIAD SYSTEMS CORPORATION
AMENDED SENIOR FLOATING RATE NOTE DUE 1997
Triad Systems Corporation, a Delaware corporation, for value received,
promises to pay to _____________________________, a ______________
corporation, or registered assigns, the principal sum of ___________________
_______________________________ ($_______________) on August 1, 1997
together with interest and premium as described on the reverse hereof.
IN WITNESS WHEREOF, Triad Systems Corporation has caused this
instrument to be duly executed in its corporate name by a manual or facsimile
signature of its President and Chief Financial Officer.
Dated:
TRUSTEE'S CERTIFICATE OF TRIAD SYSTEMS CORPORATION
AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned Indenture.
By:_____________________________
James R. Porter
President
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
By:_________________________ By:_____________________________
Authorized Signature Stanley F. Marquis
Chief Financial Officer and
Treasurer
(REVERSE OF SECURITY)
AMENDED SENIOR FLOATING RATE NOTE DUE 1997
1. Interest. Triad Systems Corporation, a Delaware corporation (the
"Company"), promises to pay interest on the unpaid principal amount of this
Security from August 3, 1992 (the "Original Issue Date") and such interest
will be payable in arrears on each date (an "Interest Payment Date") which,
except as provided below, is three calendar months after the preceding
Interest Payment Date or, in the case of the first Interest Payment Date,
is three calendar months after the Original Issue Date and, in the case of
the Interest Payment Date occurring in August 1997, shall be the final date
of the maturity of this Security. The interest rate on this Security for
each Interest Period (as defined below) will be determined by the agent
appointed by the Company for such purpose, initially The Chase Manhattan
Bank, N.A. (the "Calculation Agent"). If any Interest Payment Date would
otherwise be a day which is not a Business Day (as defined in the Indenture),
(i) such Interest Payment Date shall be postponed to the next day that is a
Business Day, except that if such Business Day is in the next succeeding
calendar month, such Interest Payment Date shall be the immediately
preceding Business Day and (ii) thereafter, each subsequent Interest Payment
Date shall be the last Business Day of the third calendar month after the
month on which the preceding Interest Payment Date shall have occurred.
Interest on this Security will be payable quarterly on each Interest Payment
Date and at maturity or upon redemption hereof.
Interest payments on each Interest Payment Date will include accrued
interest from and including the Original Issue Date or from and including
the last date in respect of which interest has been paid, as the case may
be, to, but excluding, such Interest Payment Date. At maturity or upon
redemption the interest payable will include interest accrued from and
including the Original Issue Date or from and including the last date in
respect of which interest has been paid, as the case may be, to, but
excluding, the date of maturity or redemption, as the case may be. The
period beginning on and including the Original Issue Date and ending on
and excluding the first Interest Payment Date and each successive period
beginning on and including an Interest Payment Date and ending on and
excluding the next succeeding Interest Payment Date is herein called an
"Interest Period".
The rate per annum at which interest shall accrue from time to time
on the Securities (the "Interest Rate") shall be calculated by the
Calculation Agent, in accordance with the following provisions:
(i) On the second Business Day prior to the commencement of each
Interest Period (the "Determination Date"), the Calculation Agent will
determine the arithmetic mean (rounded upwards, if necessary, to the nearest
whole multiple of 1/32 of 1%) of the offered rates at approximately
11:00 a.m., London time, for three-month Eurodollar deposits for the
Interest Period concerned, which appear on the Reuters Screen LIBO Page,
on such Determination Date. "Reuters Screen LIBO Page" means the display
designated as Page "LIBO" on the Reuters Monitor Money Rate Service (or such
other page as may replace the LIBO page on that service for the purpose of
displaying London interbank offered rates of major banks). If at least two
such offered rates appear on the Reuters Screen LIBO Page, the Interest Rate
for such Interest Period shall be 3.05% per annum above such arithmetic
mean as determined by the Calculation Agent.
(ii) If fewer than two such offered rates appear on the Reuters
Screen LIBO Page, the Calculation Agent will request the principal London
office of each of four major banks in the London interbank market, selected
by the Calculation Agent, to provide the Calculation Agent with its offered
quotation for three-month Eurodollar deposits for the Interest Period
concerned to prime banks in the London interbank market at approximately
11:00 a.m., London time, on the Determination Date in question and in a
principal amount equal to an amount of not less than U.S. $1 million that
is representative for a single transaction in such market at such time. If
at least two such quotations are provided, the Interest Rate for such
Interest Period shall be 3.05% per annum above the arithmetic mean (rounded
as aforesaid) of the offered quotations obtained by the Calculation Agent,
as determined by the Calculation Agent.
(iii) If fewer than two such quotations are provided, the Calculation
Agent will request three major banks in The City of New York, selected by
the Calculation Agent, to provide the Calculation Agent with a quotation of
the rate at which each such bank offered to leading European banks at
approximately 11:00 a.m., New York City time, on that Determination Date for
three-month loans in U.S. dollars for the Interest Period concerned and in a
principal amount equal to an amount of not less than U.S. $1 million that is
representative for a single transaction in such market at such time. If the
banks selected as aforesaid by the Calculation Agent are quoting as mentioned
in this paragraph, the Interest Rate for such Interest Period shall be 3.05 %
per annum above the arithmetic mean (rounded as aforesaid) of the offered
quotations obtained by the Calculation Agent, as determined by the
Calculation Agent. If the banks selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this paragraph, the Interest Rate in
effect for the applicable period will be the Interest Rate in effect on such
Determination Date.
As soon as possible after 11:00 a.m., London time, on each
Determination Date, the Calculation Agent shall determine the Interest Rate
and calculate the amount of interest payable for the following Interest
Period on each $100,000 principal amount of the Securities (the "Interest
Amount"). The Interest Amount for each Interest Period shall be calculated
by applying the Interest Rate to $100,000 and multiplying such amount by the
number of actual days for which interest will accrue in the Interest Period
divided by 360 and rounding the result to the nearest cent (with one-half
cent being rounded upwards). The determination of the Interest Rate by the
Calculation Agent shall (in the absence of willful default, bad faith or
manifest error) be final and binding upon all parties.
The Company shall pay interest on overdue principal at the Interest
Rate in effect from time to time plus 2%; it shall pay interest on overdue
installments of interest (without regard to any applicable grace periods) at
the same rate to the extent lawful.
2. Method of Payment. The Company will pay interest on the
Securities (except defaulted interest) to the persons who are registered
holders of Securities at the close of business on the 15th day, immediately
preceding each Interest Payment Date. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company may, however,
pay principal and interest by federal funds bank wire transfer or interest
by its check payable in such money. It or the Paying Agent may deliver any
interest payment to a Holder's registered address. Notwithstanding the
foregoing, the Company shall pay or cause to be paid all amounts payable
with respect to Transfer Restricted Securities pursuant to Section 2.15 of
the Indenture (as defined below).
3. Paying Agent and Registrar. Initially, The Chase Manhattan
Bank, N.A. (the "Trustee"), will act as Paying Agent and Registrar. The
Company or any of its Subsidiaries may act as Paying Agent, Registrar or
co-Registrar.
4. Indenture. The Company issued the Securities under an Indenture
dated as of August 1, 1992 (the "Indenture") between the Company and the
Trustee. The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act
of 1939 (15 U.S. Code sections 77aaa-77bbbb) as amended from time to time.
The Securities are subject to all such terms, and Securityholders are
referred to the Indenture and such Act for a statement of them. The
Securities are general unsecured obligations of the Company limited in
aggregate principal amount to $15,500,000. The Indenture limits, among
other things, the incurrence of additional Funded Indebtedness (as defined
in the Indenture), change of control, the payment of dividends, the
incurrence of liens, certain transactions with affiliates, dividend and
other payment restrictions affecting subsidiaries, sales of assets,
property and subsidiary stock, material acquisitions and capital expenditures
and requires the Company to maintain a minimum Consolidated Net Worth (as
defined in the Indenture) and a minimum Fixed Charge Coverage Rate (as
defined in the Indenture). The limitations are subject to a number of
important qualifications and exceptions. Periodically, the Company must
report to the Trustee and Holders on compliance with the limitations
contained in the Indenture.
5. Optional Redemption. The Company may redeem all or any of the
Securities at any time, upon 30 days notice on or after August 1, 1993,
at a redemption price of 100% of principal amount plus accrued interest to
the redemption date; provided, however, that any such optional redemptions
shall be in increments of $1,000,000 principal amount of Securities.
6. Mandatory Redemption.
The Company will be required to redeem on August 1, 1995, and
August 1, 1996, $3,750,000 and $5,875,000, respectively, of the principal
amount of Securities at a redemption price of 100% of principal amount plus
accrued interest to the redemption date. The amounts required to be redeemed
hereunder shall be reduced by the amounts of any optional redemptions
pursuant to paragraph 5 hereof, with any such optional redemptions being
applied to reduce first the amount of the mandatory redemption on
August 1, 1995 and second the amount of the mandatory redemption on
August 1, 1996.
7. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Securities held by a Holder are to
be redeemed. On and after the redemption date interest ceases to accrue on
Securities or portions of them called for redemption, unless the Company
defaults in making the redemption payment.
8. Offers to Purchase.
(a) The Indenture provides that, subject to certain conditions, if
the Company's Consolidated Net Worth is less than a certain specified
amount, the Company will be obligated to offer to purchase up to 10% of the
aggregate principal amount of Securities originally issued at a purchase
price equal to 100% of the principal amount thereof plus accrued interest
thereon.
(b) The Indenture provides that, in the event of a Change of Control
(as defined in the Indenture) the Company will be obligated to offer to
purchase all of the Securities then outstanding at a purchase price equal
to 101% of the principal amount thereof plus accrued interest thereon.
(c) The Indenture provides that, subject to certain conditions, in
the event of certain asset and real property sales, the Company will be
obligated to offer to purchase Specified Senior Indebtedness (as defined in
the Indenture) on a pro rata basis by class of Specified Senior Indebtedness
at a purchase price equal to 100% of the principal amount thereof plus
accrued interest thereon with the net cash proceeds of such asset and real
property sale.
9. Denominations, Transfer. Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
and to pay to it any taxes and fees required by law or permitted by the
Indenture. The Registrar need not exchange or register the transfer of any
Security or portion of a Security selected for redemption. Also, it need
not exchange or register the transfer of any Securities for a period of
15 days before a selection of Securities to be redeemed.
10. Persons Deemed Owners. The registered holder of a Security may
be treated as the owner of it for all purposes.
11. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or Paying Agent will
pay the money back to the Company at its request. After that, Holders
entitled to the money must look to the Company for payment as general
creditors unless applicable abandoned property law designates another person.
12. Amendment, Supplement, Waiver. Subject to certain exceptions,
the Indenture or the Securities may be amended or supplemented by the
Company and the Trustee with the written consent of the Holders of at least
a majority in principal amount of the outstanding Securities, and any past
default or compliance with any provision may be waived with the consent of
the holders of a majority in principal amount of the outstanding Securities.
Without notice to or the consent of any Securityholder, the Company and the
Trustee may amend or supplement the Indenture or the Securities to cure any
ambiguity, defect or inconsistency or to comply with Section 5.1. of the
Indenture or to provide for uncertified Securities in addition to
certificated Securities or to make any change that does not adversely affect
the rights of any Securityholder.
13. Successor Corporation. When a successor corporation assumes all
the obligations of its predecessor under the Securities and the Indenture
and the transaction complies with the terms of Article 5 of the Indenture,
the successor corporation shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under the Indenture with the
same effect as if such successor corporation had been named as the Company
therein.
14. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default occurs and is continuing, the Trustee or the Holders of at least
25% in principal amount of the then outstanding Securities may declare all
the Securities to be due and payable immediately, except that in the case of
an Event of Default arising from certain events of bankruptcy or insolvency,
all outstanding Securities become due and payable immediately without further
action or notice. Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Securities may direct the Trustee
in its exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing default (except a default in
payment of principal or interest) if it determines that withholding notice
is in their interests. The Company must furnish an annual compliance
certificate to the Trustee.
15. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
16. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Securityholder by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration
for the issuance of the Securities.
17. Authentication. This Security shall not be valid until the
Trustee signs the certificate of authentication on the other side of this
Security.
18. Abbreviations. Customary abbreviations may be used in the name
of a Securityholder or an assignee, such as: TEN COM (tenants in common),
TENANT (tenants by the entireties), JT TEN (joint tenants with right of
survivorship and not as tenants in common), CUST (custodian), and U/G/M/A
(Uniform Gifts to Minors Act).
The Company will furnish to any Securityholder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Triad Systems Corporation
3055 Triad Drive
Livermore, California 94550
Attention: Vice President, Finance
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below:
I or we assign and transfer this Security to _______________________________
____________________________________________________________________________
(insert assignee's social security or tax ID number)________________________
(print or type assignee's name address and zip code) and irrevocably appoint
____________________________________________________________________________
____________________________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.__________________________________________
____________________________________________________________________________
Date: _______________________ Your signature: ______________________________
(Sign exactly as your name
appears on the other side
of this Security.)
Signature Guarantee: __________________________________
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to elect to have this Security purchased by the Company
pursuant to the Indenture check here _________.
If you wish to elect to have only part of this Security purchased by
the Company pursuant to the Indenture, state the amount: $_________________.
Date: ______________________ Your Signature: ___________________________
(Sign exactly as your name
appears on the other side
of this Security.)
Signature Guarantee: _________________________________
Exhibit 8
FOR IMMEDIATE RELEASE
Triad Systems Corporation
CONTACT: Tim Mehren No. 95-10
510 449-0606
TRIAD COMPLETES EXCHANGE OF PREFERRED STOCK AND WARRANTS
LIVERMORE, Calif., March 31, 1995 -- Triad Systems Corporation
(NASDAQ: TRSC) today announced the completion of an exchange of all
1 million shares of preferred stock and associated warrants to purchase
3.5 million shares of common stock held by entities affiliated with
Richard C. Blum & Associates, L.P., for $10 million cash and
approximately 2.2 million shares of Triad common stock.
Following the exchange, entities affiliated with Blum &
Associates hold approximately 13% of outstanding Triad common shares.
Richard C. Blum will continue to serve on Triad's Board of Directors.
The exchange eliminates $400,000 in preferred shares dividend
payments in the current fiscal year and up to $2 million annually in
future years. It also reduces by approximately 900,000 the number of
common shares used when calculating earnings per share.
"Importantly, the exchange was accomplished without our incurring
any new debt, and removes another significant obligation created by
our successful 1989 takeover defense," said Triad President and Chief
Executive Officer James R. Porter. "It also solidifies our capital
structure, eliminating the uncertainty related to the 3.5 million
warrants and their eventual disposition."
At December 31, 1994, Triad had reduced its debt obligation to
below $35 million from its original $80 million.
Triad creates specific information-management tools to meet the
business needs of its served industries, providing customers at every
tier of the Automotive Aftermarket and Hardlines and Lumber
distribution chains with a growing complement of innovative
information solutions.
###
