Exhibit 10.87
AMENDMENT NO. 1
AMENDMENT TO CREDIT AGREEMENT
-----------------------------
This Amendment dated as of the 13th day of November, 2001 by and between
Aspect Communications Corporation, a California corporation ("Company") and
Comerica Bank-California, a California banking corporation ("Bank").
WITNESSETH:
WHEREAS, Company and Bank entered into a Credit Agreement dated June 15,
2001 ("Agreement").
WHEREAS, Company and Bank desire to amend the Agreement as set forth
herein.
NOW, THEREFORE, the Company and the Bank agree as follows:
1. The definition of "Cash Equivalents" set forth in Section 1 of the
Agreement is amended to read in its entirety as follows:
"'Cash Equivalents' shall mean
(i) securities issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof,
and federal agencies such as Federal Home Loan Bank, Xxxxxx Xxx,
Federal Home Home Loan Mortgage Corp, and Federal Farm Credit Banks;
all having maturities of not more than three years from the date of
acquisition all of which would be classified as investments
available for sale in accordance with FASB 115 and GAAP.
(ii) marketable direct obligations issued by any State of the United
States of America or any local government or other political
subdivision thereof rated (at the time acquisition of such
security) at least A- by Standard & Poor's Ratings Group ("S&P") or
the equivalent thereof by Xxxxx'x Investors Service, Inc.
("Moody's") having maturities of not more than three years from the
date of acquisition all of which would be classified as investments
available for sale in accordance with FASB 115 and GAAP.
(iii) U.S. dollar denominated time deposits, certificates of deposit and
bankers' acceptances of (x) Bank, (y) any domestic commercial bank
of recognized standing having capital and surplus in excess of
$500,000,000 or (z) any bank whose short-term commercial paper
rating (at the acquisition
of such security) by S&P is at least A-1 or the equivalent
thereof or by Xxxxx'x is at least P-1 or the equivalent thereof
(any such bank, an "Approved Bank"). These U.S. dollar denominated
time deposits and bankers' acceptances should have maturities of
not more than six months from the date of acquisition, while the
certificates of deposit should have a maximum maturity of 1 year.
(iv) commercial paper and variable or fixed rate notes issued by Bank or
any Approved Bank or by the parent company of Bank or any
Approved Bank and commercial paper and variable fixed rate notes
issued by, or guaranteed by, any industrial or financial company
with a short-term commercial paper rating (at the time acquisition
of such security) of at least A 1 or the equivalent thereof by
S&P or at least P 1 or the equivalent thereof by Moody's, or
issued by or guaranteed by any industrial or financial company
with a long-term unsecured debt rating (at the time of
acquisition of such security) of at least A- or the equivalent
thereof by S&P or the equivalent thereof by Moody's having
maturities of not more than three years from the date of
acquisition all of which would be classified as investments
available for sale in accordance with FASB 115 and GAAP.
(v) repurchase agreements with Bank or any Approved Bank maturing within
one year from the date of acquisition that are fully collateralized
by investment instruments that would otherwise be Cash Equivalents.
(vi) Asset backed securities with a AAA rating minimum, as rated by 2
Nationally Recognized Securities Rating Organizations, at time of
acquisition, having maximum effective durations or expected
average lives of not more than three years from the date of
acquisition all of which would be classified as investments
available for sale in accordance with FASB 115 and GAAP.
(vii) Asset backed commercial paper with a long-term rating of AAA or a
short term rating of A1/P1 by S&P, at time of acquisition all of
which would be classified as investments available for sale in
accordance with FASB 115 and GAAP.
(viii) All of the above which would be classified as investments available
for sale in accordance with FASB 115 and GAAP. B. For securities
with announced calls, put dates, remarketing dates or auction
dates, the maturity shall be deemed to be the announced call
date, put date, remarketing date or auction date provided that
the principal value of the security to be received on the call
date, put date, remarketing date or auction date shall be a fixed
amount."
2. Company hereby represents and warrants that, after giving effect to
the amendment contained herein, (a) execution, delivery and performance of this
Amendment and any other
documents and instruments required under this Amendment or the Agreement are
within Company's corporate powers, have been duly authorized, are not in
contravention of law or the terms of Company's Certificate of Incorporation or
Bylaws, and do not require the consent or approval of any governmental body,
agency, or authority; and this Amendment and any other documents and instruments
required under this Amendment or the Agreement, will be valid and binding in
accordance with their terms; (b) the continuing representations and warranties
of Company set forth in Sections 6.1 through 6.5 and 6.7 through 6.10 of the
Agreement are true and correct on and as of the date hereof with the same force
and effect as made on and as of the date hereof; (c) the continuing
representations and warranties of Company set forth in Section 6.6 of the
Agreement are true and correct as of the date hereof with respect to the most
recent financial statements furnished to the Bank by Company in accordance with
Section 7.1 of the Agreement; and (d) no event of default, or condition or event
which, with the giving of notice or the running of time, or both, would
constitute an event of default under the Agreement, has occurred and is
continuing as of the date hereof.
3. This Amendment shall be effective upon execution of this Amendment
by Company and Bank.
4. Except as modified hereby, all of the terms and conditions of the
Agreement shall remain in full force and effect.
WITNESS the due execution hereof on the day and year first above written.
COMMERCIAL BANK-CALIFORNIA ASPECT COMMUNICATIONS
CORPORATION
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------------------------- -------------------------------
Its: V.P. Its: CFO
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AMENDMENT NO. 2
AMENDMENT TO CREDIT AGREEMENT
-----------------------------
This Amendment dated as of the 26th day of December, 2001 by and between
Aspect Communications Corporation, a California corporation ("Company") and
Comerica Bank- California, a California banking corporation ("Bank").
WITNESSETH:
WHEREAS, Company and Bank entered into a Credit Agreement dated June 15,
2001, as amended by an Amendment dated November 13, 2001 ("Agreement").
WHEREAS, Company and Bank desire to amend the Agreement as set forth
herein.
NOW, THEREFORE, the Company and the Bank agree as follows:
1. The definition of "Base Adjusted Tangible Net Worth" set forth in
Section 1 of the Agreement is amended to read in its entirety as follows:
"'Base Adjusted Tangible Net Worth' shall initially mean
$165,000,000. On the last day of each fiscal quarter of Company (beginning
December 31, 2001), Base Adjusted Tangible Net Worth shall increase by
seventy five percent (75%) of Net Income for the quarter then ended;
provided that for purposes of determining Base Adjusted Tangible Net Worth
if Net Income is less than zero for any fiscal quarter, it shall be deemed
to be zero for such fiscal quarter. In addition effective upon the issuance
after December 31, 2000 by Company or any of its Subsidiaries of any Equity
Interests (other than Equity Interests issued to sellers in connection with
a Permitted Acquisition) or the incurrence of any Subordinated Debt, Base
Adjusted Tangible Net Worth shall increase by an amount equal to one
hundred percent (100%) of the Net Cash Proceeds of such equity issuance or
issuance of Subordinated Debts."
2. The definition of "Unrestricted Cash" set forth in Section 1 of the
Agreement is Amended to read in its entirety as follows:
"'Unrestricted Cash' shall means as of any date of determination,
aggregate cash and Cash Equivalents of Company and its Subsidiaries which
is not subject to any lien or security in favor of any person."
3. Section 7.12 of the Agreement is amended to read in its entirety as
follows:
"7.12--Maintain EBITDA of not less than the following amounts for
fiscal quarters specified below:
Fiscal Quarter Ending Amount
----------------------------------------------------------------------
March 31, 2002 $0
June 30, 2002 $2,500,000
September 30, 2002 and each fiscal quarter and thereafter $5,000,000"
4. Section 7.14 of the Agreement is amended to read in its entirety as
follows:
"Maintain as of the end of each month a Leverage Ration of not more
than 1.25 to 1.0."
5. Company has informed the bank that it may violate the provision of
Section 7.12 for the period ended December 31, 2001. The Bank hereby waives any
default arising from any violation of the provisions of Section 7.12 for the
period ended December 31, 2001. This waiver shall not act as a consent or waiver
of any other transaction, act or omission, whether related or unrelated thereto,
including any noncompliance with such covenant for any period other than the
period ending December 31, 2001. This waiver shall not extend to or affect any
obligation, covenant, agreement or default not expressly waived hereby.
6. Company hereby represents and warrants that, after giving effect to
the amendments and waivers contained herein, (a) execution, delivery and
performance of this Amendment and any other documents and instruments required
under this Amendment or the Agreement are within Company's corporate powers,
have been duly authorized, are not in contravention of law or the terms of
Company's Certificate of Incorporation or Bylaws, and do not require the consent
or approval of any governmental body, agency, or authority; and this Amendment
and any other documents and instruments required under this Amendment or the
Agreement, will be valid and binding in accordance with their terms; (b) the
continuing representations and warranties of Company set forth in Sections 6.1
through 6.5 and 6.7 through 6.10 of the Agreement are true and correct on and as
of the date hereof with the same force and effect as made on and as of the date
hereof; (c) the continuing representations and warranties of respect to the most
recent financial statements furnished to the Bank by Company in accordance with
Section 7.1 of the Agreement; and (d) no event of default, or condition or event
which, with the giving of notice or the running of time, or both, would
constitute an event of default under the Agreement, has occurred and is
continuing as of the date hereof.
7. This Amendment shall be effective upon execution of this Amendment
by Company and Bank and payment by Company to Bank of a non-refundable amendment
fee in the amount of $5,000.00.
8. Except as modified hereby, all of the terms and conditions of the
Agreement shall remain in full force and effect.
WITNESS the due execution hereof on the day and year first above written.
COMMERCIAL BANK-CALIFORNIA ASPECT COMMUNICATIONS
CORPORATION
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------------------------- -------------------------------
Its: V.P. Its: EVP, CFO & CAO
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