Exhibit 4.1
TRIDEX CORPORATION
PROGRESSIVE SOFTWARE, INC.
ULTIMATE TECHNOLOGY CORPORATION
00 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
September 30, 1999
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
MASSMUTUAL CORPORATE INVESTORS
MASSMUTUAL PARTICIPATION INVESTORS
MASSMUTUAL CORPORATE VALUE PARTNERS LIMITED
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Re: Fourth Amendment to Securities Purchase Agreements
Ladies and Gentlemen:
TRIDEX CORPORATION, a Connecticut corporation (the "Holding Company"),
PROGRESSIVE SOFTWARE, INC., a North Carolina corporation and successor to Tridex
NC, Inc. ("PSI"), and ULTIMATE TECHNOLOGY CORPORATION, a New York corporation
("UTC") (the Holding Company, PSI, and UTC are sometimes collectively referred
to herein as the "Issuers" and each as an "Issuer"), jointly and severally agree
with each of you as follows.
Background:
A. Reference is made to those certain Securities Purchase Agreements dated
April 17, 1998, as amended by that certain letter of waiver and limited
amendment dated November 12, 1998 relating thereto, as further amended by that
certain Second Amendment to Securities Purchase Agreements dated March 26, 1999
(the "Second Amendment"), and as further amended by that certain Third Amendment
to Securities Purchase Agreement dated June 30, 1999 (as so amended, the
"Securities Purchase Agreements"), among the Issuers and each of you.
Capitalized terms used herein without definition have the meanings ascribed to
them in the Securities Purchase Agreements.
B. The Issuers have requested that the holders of the Securities approve
certain amendments to and waivers under the Securities Purchase Agreements and
the other Operative Documents in connection with the Amendment No. 4 to Credit
Agreement dated as of September 30, 1999 (the "Fourth Amendment to Fleet Bank
Agreement") among the Holding Company, PSI, UTC, and Fleet National Bank,
pursuant to which certain amendments are being made to the Fleet Bank Documents
and Fleet National Bank is agreeing to the deferral of certain payments of
principal thereunder.
1. Consents and Waivers. Each of you hereby agrees that (a) the Issuers may
defer the payment of each of the April 17, 1999, July 17, 1999, October 17, 1999
and January 17, 2000 interest payments on the Notes until April 15, 2000, at
which date such April 17, 1999, July 17, 1999, October 17, 1999 and January 17,
2000 interest payments on the Notes shall all be due and payable in full; and
(b) notwithstanding anything to the contrary in the Securities Purchase
Agreements, the Issuers' failure to comply with section 13.6 of the Securities
Purchase Agreements prior to the date of this Fourth Amendment in respect of the
period ending December 31, 1998, shall not constitute an Event of Default and
the holders hereby waive any such Event of Default which existed for such period
prior to the date of this Fourth Amendment, provided that such section 13.6 of
the Securities Purchase Agreements as amended by the Second
Amendment shall only remain in effect in respect of periods ending subsequent to
December 31, 1998, and prior to April 1, 2000. As of April 1, 2000, such section
13.6, as in effect prior to the date of the Second Amendment, shall be deemed
reinstated.
2. Conditions to Effectiveness of Fourth Amendment. This Fourth Amendment shall
be effective upon the first date upon which the following conditions shall have
been satisfied to your reasonable satisfaction:
(a) The Issuers shall have delivered to you executed copies of each of the
following documents in form and substance satisfactory to you:
(i) a fully executed counterpart of this Fourth Amendment;
(ii) certified copies of (A) the resolutions of the Board of
Directors of each of the Issuers approving this Fourth Amendment and the
matters contemplated hereby and (B) all documents evidencing other
necessary corporate actions and governmental approvals, if any, with
respect to this Fourth Amendment and the other documents to be delivered
hereunder;
(iii) a certificate of the Secretary or an Assistant Secretary of
each of the Issuers certifying the names and true signatures of the
officers of each Issuer authorized to sign this Fourth Amendment and the
other documents to be delivered hereunder;
(iv) an opinion, dated the date hereof, from Messrs. Xxxxxxxx, Xxxxx
& Xxxxxx LLP, counsel for the Issuers, substantially in the form of
Exhibit 3(a)(iv) attached hereto; and
(v) an executed counterpart of the Fourth Amendment to Fleet Bank
Agreement, substantially in the form of Exhibit 3(a)(v) attached hereto.
(b) The Issuers shall have paid in full all fees, expenses and
disbursements incurred by you in connection with this Fourth Amendment,
including, without limitation, the fees, expenses and disbursements of your
special counsel.
3. No Default, Representations and Warranties, Etc.
(a) The Issuers represent and warrant that the representations and
warranties contained in the Securities Purchase Agreements and the other
Operative Documents are in all material respects correct on and as of the date
hereof (after giving effect hereto) as if made on such date (except as a result
of transactions permitted under the Securities Purchase Agreements), that no
Default or Event of Default exists (other than those which have been
specifically waived pursuant to section 1 hereof) and that no condition exists
which has resulted in, or could reasonably be expected to result in, a Material
Adverse Change.
(b) Each of the Issuers ratifies and confirms the Securities Purchase
Agreements and each of the other Operative Documents to which it is a party and
agrees that, after giving effect to the amendments, modifications and
supplements effected hereby, each such agreement, document and instrument is in
full force and effect, that its obligations thereunder and under this Fourth
Amendment are its legal, valid and binding obligations enforceable against it in
accordance with the terms thereof and hereof and that it has no defense, whether
legal or equitable, setoff or counterclaim to the payment and performance of
such obligations.
(c) The Issuers agree that (i) if any default shall be made in the
performance or observation of any covenant, agreement or condition contained
herein or (ii) if any representation or warranty made by any Issuer herein or
therein shall prove to have been false or incorrect on the date as of which
made, the same shall constitute an Event of Default under the Securities
Purchase Agreements and the other Operative Documents and, in such event, you
and each other holder of any of the Securities shall have all
rights and remedies provided by law and/or provided or referred to in the
Securities Purchase Agreements and the other Operative Documents. The Issuers
further agree that this Fourth Amendment is an Operative Document and all
references thereto in the Securities Purchase Agreements and in any other of the
Operative Documents shall include this Fourth Amendment.
4. Payment of Transaction Costs. Without limiting the generality of the
provisions of the Operative Documents, the Issuers jointly and severally shall
pay all reasonable fees and disbursements incurred by you in connection
herewith, including, without limitation, the reasonable fees, expenses and
disbursements of your special counsel.
5. Governing Law. This Fourth Amendment, including the validity hereof and the
rights and obligations of the parties hereunder, shall be construed in
accordance with and governed by the domestic substantive laws of The
Commonwealth of Massachusetts without giving effect to any choice of law or
conflicts of law provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction.
6. Miscellaneous. The headings in this Fourth Amendment are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. This
Fourth Amendment embodies the entire agreement and understanding among the
parties hereto and supersedes all prior agreements and understandings relating
to the subject matter hereof. In case any provision in this Fourth Amendment
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby. This Fourth Amendment may be executed in any number of
counterparts and by the parties hereto on separate counterparts but all such
counterparts shall together constitute but one and the same instrument. Except
as specifically amended or modified pursuant to this Fourth Amendment, the
Securities Purchase Agreements shall remain in full force and effect, and the
execution and delivery of this Fourth Amendment shall not, except as expressly
provided herein, operate as a waiver of any of your rights, powers, or remedies
under the Securities Purchase Agreements or the documents and instruments
delivered in connection therewith.
[The remainder of this page is left blank intentionally.]
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart hereof, whereupon this Fourth
Amendment shall become a binding agreement under seal among the parties hereto.
Please then return one of such counterparts to the Issuers.
Very truly yours,
TRIDEX CORPORATION
By _________________________________
(Title)
PROGRESSIVE SOFTWARE, INC.
By _________________________________
(Title)
ULTIMATE TECHNOLOGY CORPORATION
By ________________________________
(Title)
The foregoing is hereby accepted and agreed to.
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By _________________________________
(Title)
MASSMUTUAL CORPORATE INVESTORS
By _________________________________
(Title)
The foregoing is executed on behalf of MassMutual Corporate Investors, organized
under a Declaration of Trust, dated September 13, 1985, as amended from time to
time. The obligations of such Trust are not personally binding upon, nor shall
resort be had
to the property of, any of the Trustees, shareholders, officers, employees, or
agents of such Trust, but the Trust's property only shall be bound.
MASSMUTUAL PARTICIPATION INVESTORS
By _________________________________
(Title)
The foregoing is executed on behalf of MassMutual Participation Investors,
organized under a Declaration of Trust, dated April 7, 1988, as amended from
time to time. The obligations of such Trust are not personally binding upon, nor
shall resort be had to the property of, any of the Trustees, shareholders,
officers, employees, or agents of such Trust, but the Trust's property only
shall be bound.
MASSMUTUAL CORPORATE VALUE PARTNERS LIMITED
By Massachusetts Mutual Life Insurance Company, as Investment Manager
By _________________________________
(Title)
