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EXHIBIT 4.04
EXECUTION COPY
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of July 31, 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, as amended by a
First Amendment to Credit Agreement dated May 19, 1995 (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 that the Agent and the Banks release
the collateral held under the Credit Agreement, 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 The definition of "Borrowing Base" contained in Section 1.1 is
restated in its entirety as follows:
"Borrowing Base" shall mean, as of any date, the difference of
(a) the sum of (i) an amount equal to 80% of the value of Eligible
Domestic Accounts Receivable, plus, (ii) an amount equal to 70% of
Eligible Foreign Accounts Receivable, minus (b) the aggregate amount
of all obligations of each Subsidiary of the Company for borrowed
money or its equivalent. The amount determined pursuant to clause
(a) of this definition of Borrowing Base as of any date shall be the
amount of clause (a) for the month end for which the most recent
Borrowing Base Certificate has been delivered and such amount shall
continue in effect until the next Borrowing Base Certificate is
delivered.
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1.2 The following definitions are hereby added in appropriate
alphabetical order to Section 1.1:
"Second Amendment" shall mean the Second Amendment to Credit
Agreement dated as of July __, 1995 among the Company, the Banks and
the Agent.
"Second Amendment Effective Date" shall mean the date the
Second Amendment is effective pursuant to Article III thereof.
1.3 The definition of "Security Documents" contained in Section 1.1
is restated in its entirety as follows:
"Security Documents" shall mean, collectively, any guaranties
executed by any of the Guarantors and any other security agreements
or documents executed by the Company or any of its Subsidiaries at
any time in connection with this Agreement; provided, however, it is
acknowledged and agreed that the existing security documents
described on Schedule 1.1-A hereto (the "Terminated Security
Documents") are terminated as of the Second Amendment Effective Date
and not included in this definition of Security Documents.
1.4 Sections 2.10 and 2.11 are restated in their entirety as
follows:
"2.10 Release of Collateral. The liens and security
interests granted pursuant to the Security Documents existing prior
to the Second Amendment Effective Date shall be released as of the
Second Amendment Effective Date.
2.11 Security and Collateral. [Intentionally Omitted]."
1.5 Section 5.1(f) is restated in its entirety to read as follows:
(f) [Intentionally Omitted].
1.6 Section 6.3 is restated in its entirety to read as follows:
6.3 Application of Proceeds. [Intentionally Omitted].
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ARTICLE 11. 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 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 It is acknowledged and agreed that the Agent and the Banks
shall be terminating all financing statements and releasing the other existing
Security Documents described on Schedule 1.1-A of the Credit Agreement, and
the Banks hereby authorize the Agent to do so upon satisfaction of the
conditions described in Article III above.
4.3 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 in
connection with preparing this Amendment and the related documents and
releasing the liens and security interests.
4.4 Except as expressly amended hereby, the Company agrees that the
Credit Agreement, the Notes, the Security Documents (as such term is defined
after giving effect to this Amendment) and all other documents and agreements
(but not the Terminated Security Documents) 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
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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.
4.5 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.
IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of July, 31, 1995 and, upon
execution by all parties, this Amendment shall be effective as of the Second
Amendment Effective Date.
COMSHARE, INCORPORATED
/s/ Kathryn Jehle
By:_____________________________
ITS: Sr. VP & CFO
__________________________
NBD BANK, formerly known as NBD Bank,
N.A., Individually as a Bank and as Agent
/s/ Kelly J. Cotton
BY:______________________________
Its: Vice President
__________________________
SOCIETY BANK
/s/ John M. Lenckos
BY:______________________________
Its: Vice President
___________________________
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