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EXHIBIT 4.03
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of May 19, 1995 (this "Amendment"), is among COMSHARE, INCORPORATED, a Michigan
corporation (the "Company"), the Banks set forth on the signature pages hereof
(collectively, the "Banks") and NBD BANK, formerly known as NBD Bank, N.A., as
agent for the Banks (in such capacity, the "Agent").
RECITALS
A. The Company, the Banks and the Agent are parties to an Amended and
Restated Credit Agreement, dated as of October 31, 1994, (the "Credit
Agreement"), pursuant to which the Banks agreed, subject to the terms and
conditions thereof, to extend credit to the Company.
B. The Company has requested the ability to request loans under the
Credit Agreement denominated in foreign currencies and the Agent and the Banks
are willing to do so strictly in accordance with the terms hereof, and provided
the Credit Agreement is amended as set forth herein, and the Company has agreed
to such amendments.
TERMS
In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE 1. AMENDMENTS. Upon fulfillment of the conditions set forth in Article
III hereof, the Credit Agreement shall be amended as follows:
1.1 Section 1.1 shall be amended as follows:
(a) The definition of "Applicable Margin" shall be amended
by deleting the paragraph after the table set forth therein and inserting the
following in place thereof:
The Applicable Margin with respect to any Floating Rate
Loan shall be adjusted each time the Applicable Margin is
adjusted as described above, and the Applicable Margin with
respect to any Eurodollar Rate Loan shall be set at the
Applicable Margin in effect at the beginning of the related
Eurodollar Interest Period for such Eurodollar Rate Loan,
regardless of any change in the Applicable Margin during each
such Eurodollar Interest Period. Notwithstanding anything
herein to the contrary, (a) until such time as the Adjusted
Tangible Net Worth exceeds $30,000,000 as shown
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by financial statements of the Company and its Subsidiaries
acceptable to the Required Banks, (i) the Applicable Margin
for each Floating Rate Loan shall be 1%, (ii) Eurodollar Rate
Loans denominated in Dollars may not be elected and (iii) the
Applicable Margin for each Eurodollar Rate Loan denominated in
a Permitted Currency other than Dollars shall be 3.5%, and
(b) during any period of time an Event of Default has occurred
and is continuing and has not been waived, the Applicable
Margin shall be 1.0% with respect to Floating Rate Loans and
2.5% with respect to Eurodollar Rate Loans, except for
Eurodollar Rate Loans denominated in a Permitted Currency
other than Dollars, during such times when the Adjusted
Tangible Net Worth is less than or equal to $30,000,000, for
which the Applicable Margin shall be 3.5% as provided in
clause (a) above.
(b) The definition of "Commitment" shall be deleted in its
entirety and the following shall be inserted in place thereof:
"Commitment" shall mean, with respect to each Bank, the
commitment of each such Bank to make Loans pursuant to Section
2.1, in amounts not exceeding in aggregate principal amount
outstanding at any time the Dollar Equivalent of the
respective commitment amounts for each such Bank set forth
next to the name of each such Bank in the signature pages
hereof, as such amounts may be reduced from time to time
pursuant to Section 2.2.
(c) The definition of "Eurodollar Rate" shall be amended by
deleting the reference in clause (b) therein to "Dollars" and inserting the
following in place thereof: "the Permitted Currency in which such Eurodollar
Rate Loan is requested to be denominated" and by deleting the reference in the
fifth line of clause (b) to "interbank market" and inserting "eurocurrency
market" in place thereof.
(d) The following definitions shall be added in
appropriate alphabetical order:
"Applicable Lending Office" shall mean, with respect to any
Loan made by any Bank or with respect to such Bank's
Commitment, the office of such Bank or any Affiliate of such
Bank located at the address specified as the applicable
lending office for such Bank set forth next to the name of
such Bank in the signature pages hereof or any other office or
Affiliate of such Bank or of any Affiliate of such Bank
hereafter selected and notified to the Company and the Agent
by such Bank.
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"Equivalent" of an amount of one currency (the "first
currency") denominated in another currency (the "second
currency"), as of any date of determination, shall mean the
amount of the second currency which could be purchased with
the amount of the first currency at the spot or other relevant
rate of exchange quoted by the Agent at approximately 11:00
a.m. local time of the Applicable Lending Office on such date.
"First Amendment Effective Date" shall mean May 19, 1995.
"Optional Currency" shall mean any currency which is freely
transferrable and convertible into Dollars and is issued by an
Organization for Economic Cooperation and Development ("OECD")
country (as such designation shall change from time to time)
approved by the Banks. A list of all such approved OECD
countries as of the First Amendment Effective Date is set
forth on Schedule 1.1 which schedule shall be updated, if
necessary, by the Agent on each anniversary of the First
Amendment Effective Date.
"Original Dollar Amount" shall mean, with respect to any Loan,
the Equivalent in Dollars of the original principal amount of
such Loan specified in the related request therefor given by
the Company pursuant to Section 2.4, (a) as such amount is
reduced by payments of principal made in respect of such Loan
in Dollars (or the Dollar Equivalent thereof in the case of a
payment made in an Optional Currency) and (b) as such amount
is adjusted pursuant to Section 3.1(d).
"Permitted Currency" shall mean Dollars and any Optional
Currency.
1.2 Section 2.1 shall be amended by adding the following language
at the end thereof: "On the date of each Loan, the Equivalent in Dollars on
such date of all Loans, including the Loans to be made or requested on such
date, shall not exceed the aggregate Commitments."
l.3 Section 2.4 shall be amended by deleting Sections 2.4(a) and
(b) in their entirety and inserting the following in place thereof:
2.4 Disbursement of Borrowings. (a) The Company shall give
the Agent notice of its request for each Borrowing in
substantially the form of Exhibit D hereto by telecopy not
later than 10:00 a.m. Detroit time (i) four Eurodollar
Business Days prior to the date such Borrowing is requested to
be made if such Borrowing is to be
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made as a Eurodollar Rate Borrowing, and (ii) on the
Eurodollar Business Day such Borrowing is requested to be made
in all other cases, which notice shall specify whether a
Eurodollar Rate Borrowing or a Floating Rate Borrowing is
requested and, in the case of each requested Eurodollar Rate
Borrowing, the Interest Period to be initially applicable to
such Borrowing, and the Permitted Currency in which such
Borrowing is requested to be denominated. The Agent, by 2:00
p.m. Detroit time on the same day such notice is given in the
event of a Floating Rate Borrowing and not later than by 2:00
p.m. Detroit time on the Business Day next succeeding the day
such notice is given in all other cases, shall provide notice
of such requested Borrowing to each Bank by telecopy. Subject
to the terms and conditions of this Agreement, the proceeds of
each such requested Borrowing shall be made available to the
Company by depositing the proceeds thereof, in the case of any
Borrowing denominated in Dollars, in immediately available
funds, in an account maintained and designated by the Company
at the principal office of the Agent and, in all other cases,
in an account maintained and designated by the Company at a
bank acceptable to the Agent in the principal financial center
of the country issuing the Permitted Currency in which such
Borrowing is denominated or in such other place specified by
the Agent.
(b) Each Bank, on the date any Borrowing is requested to be
made, shall make its pro rata share of such Borrowing
available in immediately available, freely transferable,
cleared funds for disbursement to the Company pursuant to the
terms and conditions of this Agreement, in the case of any
Borrowing denominated in Dollars, at the principal office of
the Agent and, in all other cases, to the account of the
Agent at its designated branch or correspondent bank in the
country issuing the Permitted Currency in which such Borrowing
is denominated or in such other place specified by the Agent.
Unless the Agent shall have received notice from any Bank
prior to 2:3O p.m. Detroit time on the date such Borrowing is
to be made that such Bank will not make available to the Agent
such Bank's pro rata portion of such Borrowing, the Agent may
assume that such Bank has made such portion available to the
Agent on the date such Borrowing is requested to be made in
accordance with this Section 2.4. If and to the extent such
Bank shall not have so made such pro rata portion available to
the Agent, the Agent may (but shall not be obligated to) make
such amount available to the Company, and
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such Bank and the Company severally agree to pay to the Agent
forthwith on demand such amount together with interest
thereon, for each day from the date such amount is made
available to the Company by the Agent until the date such
amount is repaid to the Agent, at a rate per annum equal to
the interest rate applicable to such Borrowing during such
period, provided, that, in the case as of a Bank only, the
applicable interest rate for the first three days shall be the
Federal Funds Rate. If such Bank shall pay such amount to the
Agent together with interest, such amount so paid shall
constitute a Borrowing by such Bank as a part of such related
Borrowing for purposes of this Agreement. The failure of any
Bank to make its pro rata portion of any such Borrowing
available to the Agent shall not relieve any other Bank of its
obligations to make available its pro rata portion of such
Borrowing on the date such Borrowing is requested to be made,
but no Bank shall be responsible for failure of any other Bank
to make such pro rata portion available to the Agent on the
date of any such Borrowing.
1.4 Section 2.7 shall be amended by adding a new clause (d)
immediately after clause (c) to read as follows: "or (d) elect to convert a
Loan denominated in a Permitted Currency to a Loan denominated in another
Permitted Currency" and deleting the reference in the seventh line to "three
Eurodollar Business Days" and inserting "four Eurodollar Business Days" in
place thereof.
1.5 Section 2.8 shall be deleted in its entirety and the following
shall be inserted in place thereof:
2.8 Limitation of Requests and Elections. Notwithstanding
any other provision of this Agreement to the contrary, if,
upon receiving a request for a Eurodollar Rate Borrowing
pursuant to Section 2.4, or A request for a continuation of a
Eurodollar Rate Borrowing as a Eurodollar Rate Borrowing or a
request for a conversion of a Floating Rate Loan to a
Eurodollar Rate Loan pursuant to Section 2.7 or a request for
a conversion of a Loan denominated in a Permitted Currency to
a Loan denominated in another Permitted Currency,
(a)(i) deposits in the relevant Permitted Currency for periods
comparable to the Eurodollar Interest Period elected by the
Company are not available to any Bank in the relevant
interbank market, or (ii) the Eurodollar Rate will not
adequately and fairly reflect the cost to any Bank of making,
funding or maintaining the related Eurodollar Rate Borrowing
or (iii) by reason of national or
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international financial, political or economic conditions or
by reason of any applicable law, treaty, rule or regulation
(whether domestic or foreign) now or hereafter in effect, or
the interpretation or administration thereof by any
governmental authority charged with the interpretation or
administration thereof, or compliance by any Bank with any
guideline, request or directive of such authority (whether or
not having the force of law), including without limitation
exchange controls, it is impracticable, unlawful or impossible
for (A) any Bank to make or fund the relevant Eurodollar Rate
Borrowing, or (B) any Bank to continue such Eurodollar Rate
Borrowing as a Borrowing of the then existing type or to
convert a Borrowing to a Eurodollar Rate Borrowing or (C) the
Company to make or any Bank to receive any payment under this
Agreement at the place specified for payment hereunder or to
freely convert any amount paid into Dollars at market rates of
exchange or to transfer any amount paid or so converted to the
address of its principal office specified in Section 8.2, or
(b) except with respect to Eurocurrency Loans denominated in
a Permitted Currency other than Dollars, the Adjusted Tangible
Net Worth does not exceed $30,000,000 and the Interest
Coverage Ratio, as calculated for the period consisting of the
four most recently ended consecutive fiscal quarters of the
Company, is not greater than 5.0 to 1.0,
then the Company shall not be entitled, so long as such
circumstances continue, to request a Eurodollar Rate Borrowing
of the affected type pursuant to Section 2.4 or a continuation
of or conversion to a Eurodollar Rate Borrowing of the
affected type pursuant to Section 2.7. In the event that such
circumstances no longer exist, the Banks shall again consider
requests for Eurodollar Rate Borrowings of the affected type
pursuant to Section 2.4, and requests for continuations of and
conversions to Eurodollar Rate Borrowings of the affected type
pursuant to Section 2.7.
1.6 Section 3.1 shall be amended by adding a new Section 3.1(d)
at the end thereof to read as follows:
(d) If, pursuant to Section 2.7, a Borrowing, or portion
thereof, is continued or converted, such Borrowing or portion
thereof shall be repaid on the last day of the related
Interest Period in the Permitted Currency in which such
Borrowing is then denominated and, (i) in the case of any
conversion, the Agent shall readvance to the
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Company the Equivalent of the Original Dollar Amount of the
Loan or portion thereof as has been so repaid by the Company
in the Permitted Currency requested pursuant to Section 2.7,
and (ii) in the case of any continuation, the Agent shall
readvance to the Company the same amount of such Permitted
Currency as has been so repaid. For purposes of effecting the
repayment required by this Section 3.1(d), the Agent shall
apply the proceeds of such readvance toward the repayment of
such Borrowing or portion thereof on the last day of the
related Interest Period. In the case of any conversion, the
Agent shall be deemed to have applied the proceeds of such
advance toward the purchase of the Permitted Currency to be
repaid and to have applied the proceeds of such purchase
toward such repayment. If after any such application there
shall remain owing an amount of the Permitted Currency due to
the Agent, for the benefit of the Banks, or if an excess of
such Permitted Currency shall result, the Company shall pay to
the Banks, or the Banks shall pay to the Company, as the case
may be, the amount of such deficiency or such excess. In the
case of any continuation, on the last day of such Interest
Period, the Original Dollar Amount of such Borrowing or
portion thereof shall be adjusted to the amount in Dollars
resulting from the conversion of the amount of such Permitted
Currency so readvanced to Dollars determined as of the second
Business Day preceding such day. On the date of each such
conversion or continuation, if the Dollar Equivalent on such
date of all Borrowings, including the Borrowings being
converted or continued, exceeds the aggregate amount of the
Commitments of the Banks, the Company shall take the following
action in the following order until such excess of the Dollar
Equivalent of all Borrowings over the aggregate Commitments of
the Banks is eliminated: (a) on such date, first, reduce or
withdraw any pending request for a new Borrowing in Dollars to
be made on such date, second, repay in Dollars any Floating
Rate Borrowing denominated in Dollars then outstanding, and
third, reduce the amount of, or repay, in the Permitted
Currency in which such Loan is denominated, any Borrowing
which the Company has requested to be converted or continued
on such date, and (b) on the last day of each Interest Period
ending thereafter, reduce the amount of, or repay in the
Permitted Currency in which such Borrowing is denominated, any
Borrowing which the Company has requested to be converted or
continued on such last day. The Company shall repay to the
Banks on the last day of such related Interest Period an
amount in the Permitted Currency in which such Borrowing is
denominated equal to the
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amount of such excess or in full if such excess exceeds the
amount of such Borrowing, together with all amounts owing to
the Banks under Section 3.8 in connection therewith. The
repayments referenced in this Section 3.1(d) may be effected
through requests for conversions or continuations pursuant to
Section 2.7, subject to the terms and conditions of this
Agreement, and the repayments discussed in this Section 3.1
(d) provide the mechanics for effecting such continuations or
conversions from one Permitted Currency to another Permitted
Currency.
1.7 Section 3.3 shall be deleted in its entirety and the following
shall be inserted in place thereof:
3.3 Payment Method. (a) All payments to be made by the
Company hereunder will be made to the Agent for the account of
the Banks (i) in the case of principal and interest on any
Loan, in the Permitted Currency in which such Loan is
denominated, and (ii) in all other cases, in the otherwise
specified or relevant currency, and in all cases in
immediately available, freely transferable, cleared funds not
later than 1:00 p.m. at the place for payment on the date on
which such payment shall be come due (x) in the case of
principal and interest on any Loan denominated in a Permitted
Currency other than Dollars, by credit to the account of the
Agent at its designated branch or correspondent bank in the
country issuing the relevant Permitted Currency or in such
other place specified by the Agent with respect to such Loan
pursuant to Section 2.4(b), and (y) in all other cases to the
Agent at the address of its principal office specified in
Section 8.2. Payments received after 1:00 p.m. at the place
for payment shall be deemed to be payments made prior to 1:00
p.m. at the place for payment on the next succeeding Business
Day. If authorized by the Company or if payment is not made
when due hereunder, after any applicable grace period, if any,
the Company hereby authorizes the Agent to charge its account
with the Agent in order to cause timely payment of amounts due
hereunder to be made (subject to sufficient funds being
available in such account for that purpose).
(b) At the time of making each such payment, the Company
shall, subject to the other terms and conditions of this
Agreement, specify to the Agent that Loan or other obligation
of the Company hereunder to which such payment is to be
applied. In the event that the Company fails to so specify
the relevant obligation, the Agent may apply such payments as
it may determine in its sole
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discretion or, if an Event of Default shall have occurred and
be continuing, in the order provided in Section 6.3.
(c) On the day such payments are deemed received, the Agent
shall remit to the Banks their pro rata shares of such
payments in immediately available same day funds, (i) in the
case of payments of principal and interest on any Loan
denominated in a Permitted Currency other than Dollars, at an
account maintained and designated by each Bank at a bank in
the principal financial center of the country issuing the
Permitted Currency in which such Loan is denominated or in
such other place specified by the Agent and (ii) in all other
cases, to the Banks at their respective address in the United
States specified for notices pursuant to Section 8.2. In the
case of payments of principal and interest on any Loan, such
pro rata shares shall be determined with respect to each such
Bank by the ratio which the outstanding principal balance of
its Loan included in such Loan bears to the outstanding
principal balance of the Loans of all the Banks included in
such Loan and in the case of fees paid pursuant to Section 2.3
and other amounts payable hereunder (other than the Agent's
fees payable pursuant to Section 2.3(c) and amounts payable to
any Bank under Section 2.4 or 3.6), such pro rata shares shall
be determined with respect to each such Bank by the ratio
which the Commitment of such Bank bears to the Commitments of
all the Banks.
(d) This Agreement arises in the context of an international
transaction, and the specification of payment in a specific
currency at a specific place pursuant to this Agreement is of
the essence. Such specified currency shall be the currency of
account and payment under this Agreement. The obligations of
the Company hereunder shall not be discharged by an amount
paid in any other currency or at another place, whether
pursuant to a judgment or otherwise, to the extent that the
amount so paid, on prompt conversion into the applicable
currency and transfer to the Banks under normal banking
procedure, does not yield the amount of such currency due
under this Agreement In the event that any payment, whether
pursuant to a judgment or otherwise, upon conversion and
transfer, does not result in payment of the amount of such
currency due under this Agreement, the Banks shall have an
independent cause of action against the Company for the
currency deficit.
(e) If for purposes of obtaining judgment in any court it
becomes necessary to convert any currency due hereunder into
any other
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currency, the Company will pay such additional amount, if any
as may be necessary to ensure that the amount paid in respect
of such judgment is the amount in such other currency which
when converted at the Agent's spot rate of exchange prevailing
on the date of payment would yield the same amount of the
currency due hereunder. Any amount due from the Company under
this Section 3.3(e) will be due as a separate debt and shall
not be affected by judgment being obtained for any other sum
due under or in respect of this Agreement.
1.8 Section 3.7 shall be deleted in its entirety and the following
shall be inserted in place thereof.
3.7 Illegality and Impossibility. In the event that any
applicable law, treaty or other international agreement, rule
or regulation (whether domestic or foreign) now or hereafter
in effect and whether or not presently applicable to any
Bank, or any interpretation or administration thereof by any
governmental authority charged with the interpretation or
administration thereof, or compliance by any Bank with any
guideline, request or directive of such authority (whether or
not having the force of law), including without limitation
exchange controls, (a) shall make it unlawful or impossible
for any Bank to maintain any Loan under this Agreement or (b)
shall make it impracticable, unlawful or impossible for, or
shall in any way limit or impair the ability of, the Company
to make or any Bank to receive any payment under this
Agreement at the place specified for payment hereunder or to
freely convert any amount paid into Dollars at market rates of
exchange or to transfer. any amount paid or so converted to
the address of its principal office specified in Section 8.2,
the Company shall upon receipt of notice thereof from such
Bank, repay in full the then outstanding principal amount of
each Loan so affected, together with all accrued interest
thereon to the date of payment and all amounts owing to such
Bank under Section 3.8, (i) on the last day of the then
current Interest Period applicable to such Loan if such Bank
may lawfully continue to maintain such Loan to such day, or
(ii) immediately if such Bank may not continue to maintain
such Loan to such day.
1.9 Schedule 1.1 shall be added to the Credit Agreement in the form
of Schedule 1.1 attached hereto.
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ARTICLE II. REPRESENTATIONS. The Company represents and warrants to the Agent
and the Banks that:
2.1 The execution, delivery and performance of this Amendment is
within its powers, has been duly authorized and is not in contravention with
any law, of the terms of its Articles of Incorporation or By-laws, or any
undertaking to which it is a party or by which it is bound.
2.2 This Amendment is the legal, valid and binding obligation of the
Company enforceable against it in accordance with the terms hereof.
2.3 After giving effect to the amendments herein contained, the
warranties contained in Article IV of the Credit Agreement are true on and as
of the date hereof with the same force and effect as if made on and as of the
date hereof.
2.4 No Event of Default or Default exists or has occurred and is
continuing on the date hereof.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall not become
effective until each of the following has been satisfied:
3.1 This Amendment shall be signed by the Company, the Agent and the
Banks.
ARTICLE IV. MISCELLANEOUS.
4.1 References in the Credit Agreement or in any note, certificate,
instrument or other document to the "Credit Agreement" shall be deemed to be
references to the Credit Agreement as amended hereby and as further amended from
time to time.
4.2 The Company agrees to pay and to hold the Agent and the Banks
harmless for the payment of all costs and expenses arising in connection with
this Amendment, including the reasonable fees of counsel to the Agent and each
of the Banks connection with preparing this Amendment and the related
documents.
4.3 Except as expressly amended hereby, the Company agrees that the
Credit Agreement, the Notes, the Security Documents and all other documents and
agreements executed by the Company in connection with the Credit Agreement in
favor of the Agent or the Banks are ratified and confirmed and shall remain in
full force and effect and that it has no set off, counterclaim or defense with
respect to any of the foregoing. Terms used but not defined herein shall have
the respective meanings ascribed thereto in the Credit Agreement.
4.4 This Amendment may be signed upon any number of counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
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IN WITNESS WHEREOF, the parties signing this Amendment have caused
this Amendment to be executed and delivered as of May 19, 1995 and, upon
execution by all parties, this Amendment shall be effective as of the First
Amendment Effective Date.
COMSHARE, INCORPORATED
BY: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Its: Sr. Vice President & CFO
-------------------------
NBD BANK, formerly known as NBD Bank, N.A.,
Individually as a Bank and as agent
BY: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Its: Vice President
-------------------------
SOCIETY BANK
BY: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Its: Senior Vice President
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SCHEDULE 1.1
Member Countries of the Organization for
Economic Cooperation and Development
as of the First Amendment Effective Date
Austria
Belgium
Canada
Denmark
France
Germany
Greece
Italy
Ireland
Netherlands
Norway
Portugal
Spain
Sweden
Switzerland
United Kingdom
United States
Japan
Finland
Australia
New Zealand
