Exhibit 10.96



 


Exhibit 10.96


AMENDMENT NO. 1 TO CREDIT
AGREEMENT


     
This Amendment No. 1 to Credit Agreement
(“Amendment”) is made as of this
27th day of March, 2003 by and between Aspect Communications Corporation, a
California corporation (“Company”), the banks party to the Credit Agreement
(the “Banks”) and Comerica Bank, as Agent for the Banks (in such capacity, the
“Agent”).



RECITALS


     
A.     Company, Agent and the Banks entered into that certain Credit
Agreement dated as of August 9, 2002 (the “Credit Agreement”) under which the
Banks extended (or committed to extend) credit to the Company, as set forth
therein.


     
B.     Company, Agent and Banks desire to amend the Credit Agreement.


     
NOW THEREFORE, Company, Agent and the Banks agree as follows:


     
1.     The following definitions set forth in Section 1 of the Agreement are
amended to read in their entirety as follows:

	 	 
	 	     “Base
Consolidated Tangible Effective Net Worth” shall mean $1,000,000
     as of December 31, 2002. On March 31, 2003, Base Consolidated Tangible
     Effective Net Worth shall increase to $50,000,000, plus (i) one hundred
     percent (100%) of any gain on any redemption or repurchase of debentures
     issued under the Indenture for the period commencing January 1, 2003 and
     ending on March 31, 2003, plus (ii) plus one hundred percent (100%) of any
     Subordinated Debt issued by Company for the period commencing January 1,
     2003 and ending on March 31, 2003, plus, (iii) one hundred percent (100%)
     of any Initial Subordinated Debt which is converted into equity during the
     period commencing January 1, 2003 and ending on March 31, 2003, plus (iv)
     one hundred percent (100%) of the cash proceeds of the issuance of any
     Equity Interests by Company or any of its Subsidiaries during the preceding
     fiscal quarter (net of reasonable and customary costs and expenses of
     issuance); provided, that the net proceeds of the Vista Transaction shall
     be excluded from this calculation and net proceeds from any sale of Equity
     Interests by a Subsidiary to the Company shall be excluded from this
     calculation. Base Consolidated Tangible Effective Net Worth shall increase
     (but not decrease) as of the last day of each fiscal quarter of Company
     (commencing June 30, 2003) by an amount equal to (i) seventy five percent
     (75%) of Consolidated Net Income (if a positive number) for the preceding
     fiscal quarter, plus (ii) one hundred percent (100%) of any gain on any
     redemption or repurchase of debentures issued under the Indenture for the
     applicable fiscal quarter, plus (iii) plus one hundred percent (100%) of
     any Subordinated Debt issued by Company for the applicable fiscal quarter,
     plus (iv) one hundred percent (100%) of any Initial Subordinated Debt which
     is converted into equity during the applicable first quarter, plus (v) one
     hundred percent










 


(100%) of the cash proceeds of the issuance of any Equity Interests by Company
or any of its Subsidiaries during the preceding fiscal quarter (net of
reasonable and customary costs and expenses of issuance); provided, that the
net proceeds of the Vista Transaction shall be excluded from this
calculation and net proceeds from any sale of Equity Interests by a
Subsidiary to the Company shall be excluded from this calculation.


     
“Consolidated Tangible Effective Net Worth” shall mean as of any date of
determination, commencing December 31, 2002, Consolidated Tangible Net Worth as
of such date plus the outstanding principal amount of the Subordinated Debt
(excluding, however, the Initial Subordinated Debt) as of such date.


     
“Consolidated Tangible Net Worth” shall mean as of any date of determination,
the shareholders’ equity of Company and its consolidated Subsidiaries, which
shall include, without limitation, all of Company’s or any of Company’s
consolidated Subsidiaries’ preferred stock which is issued and outstanding, as
of such date determined in accordance with GAAP, less the Intangible Assets of
the Company and its consolidated Subsidiaries and less deferred tax assets for
stock disqualifying dispositions, all determined as of such date. For purposes
of this Agreement, “Intangible Assets” means the amount (to the extent reflected
in determining such Net Worth) of (i) all write-ups in the book value of any
asset owned by Company and its consolidated Subsidiaries, (ii) loans or
advances to Affiliates, (iii) all investments in unconsolidated Subsidiaries of
the Company and all equity investments in Persons which are not
Subsidiaries of Company and (iv) all unamortized debt discount and expense, unamortized
deferred charges, goodwill, patents, trademarks, service marks, trade names,
copyrights, organization or developmental expenses and other intangible assets.


     
“Liquidity Ratio” shall mean as of any date of determination, a ratio the
numerator of which is Cash Equivalents as of such date which are not subject to
any lien or security interest in favor of any person other than Comercia
Bank-California or the Collateral Agent (for the benefit of the Banks), plus
Accounts of Company and its Subsidiaries as of such date (net of an allowance
for doubtful Accounts) and the denominator of which is current liabilities of
Company and its Subsidiaries as of such date, less deferred revenue as of such
date as determined in accordance with GAAP, less any Initial Subordinated Debt
which would be included as current liabilities in accordance with GAAP as of
such date.


     
2.     The definition of
“Vista Transaction” is added in alphabetical order to
Section 1 of the Credit Agreement to read in its entirety as follows:


     
“Vista Transaction” shall mean the sale by Company of an aggregate $50,000,000
of the Company’s Series B Redeemable Convertible Preferred Stock
(“Shares”) to
Vista Equity Partners. The Shares shall initially be convertible into
22,222,222 shares of the Company’s Common Stock (subject to certain
anti-dilution protection adjustments). The accounting charges associated with
the Vista Transaction include the accrual of the 10% dividend, the accretion of
the



2






 

	 	 
	 	125% redemption premium and the amortization of the beneficial conversion
feature.
	 
	 	3.     Section 7.9 of the Agreement is amended to read in its entirety as follows:




     
“7.9     Unrestricted Cash and Liquidity Ratio. Maintain (a) at all times
Unrestricted Cash of Company of not less than Fifty Million Dollars
($50,000,000), (b) at all times Unrestricted Cash of Company and its
Consolidated Subsidiaries of not less than Eighty Million Dollars ($80,000,000),
and (c) as of the end of each fiscal quarter of Company ending during the
periods specified below, a Liquidity Ratio of not less than the following
amounts:


	 	 	 	 	 
	 	Fiscal Quarter Ending	 	Ratio	 
	 	
	 	
	 
	 	December 31, 2002	 	1.10 to 1.0	 
	 	March 31, 2003	 	1.10 to 1.0	 
	 	June 30, 2003	 	1.10 to 1.0	 
	 	September 30, 2003	 	1.10 to 1.0	 
	 	December 31, 2003	 	1.15 to 1.0	 
	 	March 31, 2004	 	1.25 to 1.0	 
	 	June 30, 2004	 	1.25 to 1.0	 
	 	September 30, 2004, and each fiscal quarter thereafter	 	1.50 to 1.0	 




     
4.     Section 7.18(a) of the Agreement shall be amended to read in its entirety
as follows:


     
“(a) With respect to each Foreign Subsidiary which is a Significant Foreign
Subsidiary on the Effective Date, and by no later than June 30, 2003, the
Company shall promptly execute, or cause to be executed by its Domestic
Subsidiaries (to the extent applicable), and delivered to the Collateral Agent a
local law Foreign Pledge Agreement encumbering the capital stock or other
ownership interests of such Foreign Subsidiary to secure the Indebtedness of the
Company;”


     
5.     Company desires to repurchase all of the debentures issued under the
Indenture (“Repurchase”) and has requested that Agent and Banks consent to the
Repurchase. Banks consent to the Repurchase, provided,
however, (a) the
purchased price for the debentures shall not exceed the face amount plus accrued
interest through the date of Repurchase, (b) the Repurchase shall occur on or
before August 31, 2003, (c) the Repurchase shall only be made with Company’s
existing cash balances, as reported on Company’s most recent financial
statements delivered to Banks in accordance with the Credit
Agreement, (d) the
Repurchase shall not violate the terms and conditions of any other agreement to
which the Company is a party, and (e) at the time of the Repurchase no Event of
Default shall have occurred and be continuing and, after giving effect to the
Repurchase, no Event of Default shall occur or be continuing.


     
6.     Company agrees to pay to Agent, for the benefit of Agent and the Banks, on
or before the effective date of this Amendment, all fees provided for under that
certain fee letter of even date herewith by and between Company and Agent.



3






 


     
7. This Amendment shall be effective upon execution of the Amendment by Agent,
Banks and Company. Notwithstanding anything to the contrary in this paragraph 4,
upon the satisfaction of the terms set forth herein the amendments set forth in
(a) paragraphs 1 and 2 of this Amendment shall be effective as of December 31,
2002 and (b) paragraph 4 shall be effective as of August 9, 2002.



     
8. Company ratifies and confirms, as of the date hereof and after giving effect
to the amendments contained herein, each of the representations and warranties
set forth in Sections 6.1 through 6.19 and 6.21 through 6.25, inclusive, of the
Credit Agreement and acknowledges that such representations and warranties are
and shall remain continuing representations and warranties during the entire
life of the Credit Agreement; and the continuing representations and warranties
of the Company set forth in Section 6.20 of the Credit Agreement are true and
correct as of the date hereof with respect to the most recent financial
statements furnished to the Agent by Company in accordance with Section 7.1 of
the Credit Agreement.



     
9. Except as specifically set forth above, this Amendment shall not be deemed to
amend or alter in any respect the terms and conditions of the Credit Agreement,
any of the Notes issued thereunder or any of the other Loan Documents, or to
constitute a waiver by the Banks or Agent of any right or remedy under or a
consent to any transaction not meeting the terms and conditions of the Credit
Agreement, any of the Notes issued thereunder or any of the other Loan
Documents.



     
10. Unless otherwise defined to the contrary herein, all capitalized terms used
in this Amendment shall have the meanings ascribed thereto in the Credit
Agreement.



     
11. This Amendment shall be construed in accordance with and governed by the
laws of the State of California.





[SIGNATURES FOLLOW ON SUCCEEDING PAGES]




4








 


     
WITNESS the due execution hereof as of the day and year first above
written.


	 	 	 	 	 	 	 
	COMERICA BANK, individually and as Agent	 	ASPECT COMMUNICATIONS CORPORATION
	 	 	 
	By: 		 /s/  W. B. Murdock	 	By:	 	 /s/  Gary A. Wetsel
	 	 	
	 	 	 	

	 
	Its:	 	Vice President

	 	Its:	 	EVP Finance, Chief Financial Officer, and
Chief Administrative Officer
	 
	THE CIT GROUP/BUSINESS CREDIT,
Inc.	 	 
	 	 	 
	By: 		 /s/  Thomas Hopkins	 
	 	 	
	 	 	 	 
	 
	Its:	 	Vice President

	 
	 
	COMERICA BANK – CALIFORNIA	 	 
	 	 	 
	By: 		 /s/  Robert Ways	 
	 	 	
	 	 	 	 
	 
	Its:	 	Vice President

	 







5