Exhibit 4.2
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
March 14, 1997, is entered into by and between SPSS INC. (the "Borrower") and
BANK OF AMERICA ILLINOIS (the "Bank").
RECITALS
A. The Borrower and the Bank are parties to a Credit Agreement dated as of
March 15, 1996 (the "Credit Agreement") pursuant to which the Bank has extended
certain credit facilities to the Borrower and certain of its Subsidiaries, on
and subject to the terms and conditions set forth therein.
B. The Borrower has requested that the Bank agree to certain amendments of
the Credit Agreement.
C. The Bank is willing to amend the Credit Agreement, subject to the terms
and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used
herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement shall be amended at the defined
term "Availability Period" by amending and restating such defined term in its
entirety as follows:
"'Availability Period': the period commencing on
the date of this Agreement and ending on the date
that is the earlier to occur of (a) March 13,
1998, and (b) the date on which the Bank's
commitment to extend credit hereunder terminates."
(b) The first clause of subsection 2.02(b) of the Credit Agreement shall be
amended in its entirety to read as follows:
(b) In lieu of the interest rate described
above, the Borrower may elect during the Availability
Period to have all or portions of Advances under the
Revolving Facility bear interest at the Offshore Rate
plus 1.00% per annum during an Offshore Rate Interest
Period, subject to the following requirements:
(c) Section 2.04 of the Credit Agreement shall be amended in its entirety
to read as follows:
2.04 Commitment Fee. The Borrower shall pay
to the Bank a commitment fee at the rate of 0.25% per
annum on the average daily unused portion of the
credit provided under this Agreement. The commitment
fee shall be computed on a calendar quarter basis and
shall be payable on the last day of each successive
calendar quarter and on the last day of the
Availability Period.
(d) Section 7.10 of the Credit Agreement shall be amended in its entirety
to read as follows:
7.10 Quick Ratio. The Borrower shall not
permit, as of the last day of any fiscal quarter, on
a consolidated basis, the ratio of its (a) sum of
cash, short-term cash investments, marketable
securities not classified as long-term investments
and accounts receivable to (b) current liabilities,
to be less than 0.90:1.00.
(e) Section 7.11 of the Credit Agreement shall be amended in its entirety
to read as follows:
7.11 Tangible Net Worth. The Borrower shall
not permit, as of the last day of any fiscal quarter,
on a consolidated basis, its Tangible Net Worth to be
less than 90% of the amount of Tangible Net Worth as
of September 30, 1996, plus the sum of (i) 75% of net
income after income taxes (without subtracting
losses) earned in each quarterly accounting period
commencing after September 30, 1996, and (ii) 100% of
the net proceeds from any equity securities issued
after September 30, 1996.
(f) Section 7.12 of the Credit Agreement shall be amended in its entirety
to read as follows:
7.12 Total Liabilities to Tangible Net
Worth. The Borrower shall not permit, as of the last
day of any fiscal quarter, on a consolidated basis,
the ratio of its (a) total liabilities, to (b)
Tangible Net Worth to be greater than 2.00:1.00.
3. Representations and Warranties. The Borrower hereby represents and
warrants to the Bank as follows:
(a) No Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Borrower of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any person (including any governmental authority) in
order to be effective and enforceable. The Credit Agreement as amended by this
Amendment constitutes the legal, valid and binding obligations of the Borrower,
enforceable against it in accordance with its respective terms, without defense,
counterclaim or offset.
(c) All representations and warranties of the Borrower contained in the
Credit Agreement are true and correct.
(d) The Borrower is entering into this Amendment on the basis of its own
investigation and for its own reasons, without reliance upon the Bank or any
other person.
4. Effective Date. This Amendment will become effective as of the date
first above written (the "Effective Date"), provided that each of the following
conditions precedent is satisfied:
(a) The Bank has received from the Borrower a duly executed
original (or, if elected by the Bank, an executed facsimile copy) of this
Amendment.
(b) The Bank has received from the Borrower a copy of a
resolution passed by the board of directors of such corporation, certified by
the Secretary or an Assistant Secretary of such corporation as being in full
force and effect on the date hereof, authorizing the execution, delivery and
performance of this Amendment.
5. Reservation of Rights. The Borrower acknowledges and agrees that the
execution and delivery by the Bank of this Amendment shall not be deemed to
create a course of dealing or otherwise obligate the Bank to forbear or execute
similar amendments under the same or similar circumstances in the future.
6. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants
and provisions of the Credit Agreement are and shall remain in full force and
effect and all references therein to such Credit Agreement shall henceforth
refer to the Credit Agreement as amended by this Amendment. This Amendment shall
be deemed incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to
the benefit of the parties hereto and thereto and their respective successors
and assigns. No third party beneficiaries are intended in connection with this
Amendment.
(c) This Amendment shall be governed by and construed
in accordance with the law of the State of Illinois.
(d) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each of
the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Bank of a facsimile transmitted document purportedly bearing
the signature of the Borrower shall bind the Borrower with the same force and
effect as the delivery of a hard copy original. Any failure by the Bank to
receive the hard copy executed original of such document shall not diminish the
binding effect of receipt of the facsimile transmitted executed original of such
document which hard copy page was not received by the Bank.
(e) This Amendment, together with the Credit Agreement,
contains the entire and exclusive agreement of the parties hereto with reference
to the matters discussed herein and therein. This Amendment supersedes all prior
drafts and communications with respect thereto. This Amendment may not be
amended except in accordance with the provisions of Section 9.05 of the Credit
Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
(g) Borrower covenants to pay to or reimburse the Bank, upon
demand, for all costs and expenses (including allocated costs of in-house
counsel) incurred in connection with the development, preparation, negotiation,
execution and delivery of this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first above written.
SPSS INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Title: Controller & Assistant Treasurer
BANK OF AMERICA ILLINOIS
By: /s/ Xxxxxx Person
Title: Vice President
