EXHIBIT 10.40
WAIVER AND FOURTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS WAIVER AND FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
(this "AMENDMENT") is dated for reference purposes only as of November 13, 2002,
by and between Bank One, NA (as successor by merger to American National Bank
and Trust Company of Chicago), a national banking association with its main
office in Chicago, Illinois ("BANK"), and SPSS Inc., a Delaware corporation
("BORROWER").
RECITALS:
A. Bank has made loans and certain other financial accommodations to
Borrower pursuant to the terms of that certain Amended and Restated Loan
Agreement dated as of June 1, 2000, as amended by First Amendment to Amended and
Restated Loan Agreement dated as of January 26, 2001, the Waiver and Second
Amendment to Amended and Restated Loan Agreement dated as of May 31, 2002 and
the Wavier and Third Amendment to Amended and Restated Loan Agreement dated as
of August 14, 2002 (collectively, the "EXISTING LOAN AGREEMENT").
B. Borrower has failed to satisfy the requirements of Sections 6.1(a)
and 6.1(c) of the Existing Loan Agreement for the fiscal quarter ending
September 30, 2002 (the "EXISTING DEFAULTS"), and Borrower has requested that
Bank waive the Existing Defaults.
C. Bank has agreed to waive the Existing Defaults on the condition that
(i) Borrower amend certain provisions of the Existing Loan Agreement as provided
in this Amendment, and (ii) Borrower complies with all other terms and
conditions of this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Incorporation of Recitals. Borrower hereby represents and warrants
to Bank that the foregoing Recitals are (a) true and accurate, (b) an integral
part of this Amendment and (c) hereby incorporated into this Amendment and made
a part hereof. All terms capitalized but not expressly defined herein shall, for
purposes hereof, have the respective meanings set forth in the Existing Loan
Agreement.
2. Amendments to Existing Loan Agreement.
(a) Section 2.1(a) of the Existing Loan Agreement is hereby amended in
its entirety to read as follows:
(A) REVOLVING LOANS. SUBJECT TO THE TERMS AND CONDITIONS HEREOF, BANK
SHALL MAKE AVAILABLE TO BORROWER REVOLVING LOANS FROM TIME TO TIME IN
AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED, AT ANY TIME OUTSTANDING,
AN AMOUNT (THE "MAXIMUM PRINCIPAL AMOUNT"), EQUAL TO THE LESSER OF: (I)
EIGHT MILLION FIVE HUNDRED THOUSAND DOLLARS ($8,500,000), MINUS LETTER
OF CREDIT USAGE, OR (II) LOAN AVAILABILITY, MINUS LETTER OF CREDIT
USAGE. THE LOANS SHALL BE FURTHER EVIDENCED BY THE REVOLVING A LOANS
NOTE. THE LOANS SHALL BE FUNDED AND INTEREST SHALL ACCRUE AND BE PAID
THEREON IN ACCORDANCE WITH THIS ARTICLE 2. THE ENTIRE UNPAID PRINCIPAL
BALANCE PLUS ACCRUED BUT UNPAID INTEREST ON THE LOANS IS DUE AND
PAYABLE ON THE REVOLVING A LOANS MATURITY DATE.
3. Waiver. Subject to the full completion of the conditions set forth
in Section 4, Bank hereby waives the Existing Defaults. Borrower and Bank hereby
agree that the foregoing waiver of the Existing Defaults shall in no way be
deemed to be a waiver or forbearance of any other default, any other Event of
Default or any Unmatured Default, whether now existing or hereafter arising,
under the Existing Loan Agreement or any other Loan Document.
4. Effectiveness; Security Agreements.
(a) Borrower shall have executed and delivered to Bank a copy of this
Amendment.
(b) Borrower shall have repaid to the Bank the amount by which the
outstanding Loan balance exceeds $8,500,000.
(c) Borrower shall have delivered to Bank a copy, certified by the
secretary of the Borrower, of the resolutions of Borrower's board of directors
authorizing the execution, delivery and performance of this Amendment.
5. Post-closing Covenant. Borrower shall further take all action
requested by Bank, in its sole discretion, necessary or desirable to create in
favor of Bank a valid and perfected first priority pledge and security interest
in and to all of the capital stock of each Subsidiary of Borrower hereafter
identified by Bank to Borrower, and, in addition or in the alternative, as may
be directed by Bank in its sole discretion, to cause any such Subsidiary to
create in favor of Bank a valid and perfected first priority pledge and security
interest in and to all of such Subsidiary's assets. Borrower will also take such
further action with respect to perfecting Bank's existing security interests on
Borrower's assets as Bank may hereafter request. Any action requested by Bank
pursuant to this Section 5 shall be completed by Borrower within thirty (30)
days after Borrower's receipt of Bank's request.
6. Expenses. Upon demand by Bank therefor, Borrower shall reimburse
Bank for all reasonable Costs, fees and expenses incurred by Bank or for which
Bank becomes obligated, in connection with the negotiation, preparation and
conclusion of
2
this Amendment, including without limitation, reasonable attorney's fees, costs
and expenses, lien search fees, costs and expenses, filing and recording fees
and all taxes payable in connection with this Amendment.
7. Waiver of Claims. Borrower hereby acknowledges, agrees and affirms
that it possesses no claims, defenses, offsets, recoupment or counterclaims of
any kind or nature against or with respect to the enforcement of the Loan
Agreement or any other Loan Document or any amendments thereto (collectively,
the "CLAIMS"), nor does Borrower now have knowledge of any facts that would or
might give rise to any Claims. If facts now exist which would or could give rise
to any Claim against or with respect to the enforcement of the Loan Agreement or
any other Loan Document, as amended by the amendments thereto, Borrower hereby
unconditionally, irrevocably and unequivocally waives and fully releases any and
all such Claims as if such Claims were the subject of a lawsuit, adjudicated to
final judgment from which no appeal could be taken and therein dismissed with
prejudice.
8. Amendment. The Loan Documents and all rights and powers created
thereby and thereunder are in all respects ratified and confirmed and shall
remain in full force and effect, except as expressly modified hereby. From and
after the date hereof, (a) the Existing Loan Agreement shall be deemed to be
amended and modified as herein provided, but, except as so amended and modified,
the Existing Loan Agreement and this Amendment shall be read, taken and
construed as one and the same instrument and (b) the term "LOAN AGREEMENT" and
all references to amendments thereof as used in the Loan Documents shall mean
the Existing Loan Agreement as amended hereby.
9. Jurisdictions. THIS AMENDMENT HAS BEEN DELIVERED FOR ACCEPTANCE BY
BANK IN CHICAGO, ILLINOIS AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAW PROVISIONS) OF THE
STATE OF ILLINOIS. BORROWER HEREBY (i) IRREVOCABLY SUBMITS, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED IN CHICAGO, ILLINOIS, OVER ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY MATTER ARISING FROM OR RELATED TO THIS AMENDMENT; (ii) IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT BORROWER MAY EFFECTIVELY DO SO, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT; (iii) AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (iv) TO THE EXTENT
PERMITTED BY APPLICABLE LAW, BORROWER AGREES NOT TO INSTITUTE ANY LEGAL ACTION
OR PROCEEDING AGAINST BANK OR ANY OF BANK'S DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS OR PROPERTY, CONCERNING ANY MATTER ARISING OUT OF OR RELATING TO THIS
AMENDMENT IN ANY COURT OTHER THAN ANY STATE OR FEDERAL COURT LOCATED IN XXXX
COUNTY, ILLINOIS. NOTHING IN THIS SECTION SHALL AFFECT OR IMPAIR BANK'S RIGHT TO
SERVE LEGAL PROCESS
3
IN ANY MANNER PERMITTED BY LAW OR BANK'S RIGHT TO BRING ANY ACTION OR PROCEEDING
AGAINST BORROWER OR BORROWER'S PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
10. Trial by Jury. TO THE EXTENT PERMITTED BY LAW, BORROWER AND BANK
EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AMENDMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY IN CONNECTION
HEREWITH. BORROWER HEREBY EXPRESSLY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT FOR BANK TO MAKE THE LOANS.
11. Representations. This Amendment shall be binding upon and inure to
the benefit of the parties hereby and their respective successors and assigns.
To induce Bank to enter into this Amendment, Borrower hereby represents and
warrants to Bank that:
(a) the execution and delivery of this Amendment, and the performance
by Borrower of its obligations under this Amendment and the other Loan
Documents as amended, are within Borrower's corporate powers, have been
duly authorized by all necessary corporate action, have received all
necessary governmental approval (if any shall be required) and do not and
will not contravene or conflict with any provisions of law or the Articles
of Incorporation or By-Laws of Borrower or of any other agreement binding
upon Borrower;
(b) this Amendment, and each other instrument executed by Borrower
concurrently herewith, is the legal, valid and binding obligation of
Borrower, enforceable against Borrower in accordance with their respective
terms, except as enforcement thereof may be subject to the effect of
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, and to the general principles
of equity (regardless of whether such enforcement is sought in a proceeding
in equity or at law);
(c) all of the representations and warranties of Borrower made in the
Loan Documents are true and correct as of the date hereof, except where
such representation or warranty specifically relates to an earlier date;
(d) as of the date hereof, after giving effect to this Amendment, no
Event of Default or Unmatured Default under the Loan Documents exists; and
(e) this Amendment, the Existing Loan Agreement and each and every
Other Agreement shall be a "credit agreement" under the Illinois Credit
Agreements Act, 815 ILCS 160/1 et.seq. (the "ACT"), the Act applies to this
transaction and any
4
action on or in any way related to each and every Loan Document shall be
governed by the Act
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and
Third Amendment to Amended and Restated Loan Agreement dated for reference
purposes only as of November 13, 2002.
SPSS INC.
By: /s/ XXXXXX XXXXXXXXX
--------------------------------
Title: Assistant Secretary and
Treasurer
BANK ONE, NA
By: /s/ XXXXX X. XXXXX
--------------------------------
Title: Assistant Vice President
5
