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EXHIBIT 10.20
Bank of America Business Loan Agreement
This Agreement dated as of September 30, 1998 is among Bank of America National
Trust and Savings Association (the "Bank") JDA Software, Inc. ("Borrower 1"),
JDA International Ltd. ("Borrower 2"), JDA Software Group, Inc. ("Borrower 3"),
JDA Worldwide, Inc. ("Borrower 4"). LIOCS Corporation ("Borrower 5"), JDA Asia
Pte Ltd ("Borrower 6"), JDA Software GMBH ("Borrower 7") and JDA Software
Canada, Ltd ("Borrower 8"), JDA Chile Sociedad Anonima ("Borrower 9") and JDA De
Mexico ("Borrower 10") (Borrower 1, Borrower 2, Borrower 3, Borrower 4, Borrower
5, Borrower 6, Borrower 7, Borrower 8, Borrower 9 and Borrower 10) are sometimes
referred to collectively as the "Borrowers" and individually as the "Borrower").
1. LINE OF CREDIT AMOUNT AND TERMS
1.1 LINE OF CREDIT AMOUNT.
(a) During the availability period described below, the Bank will provide a
line of credit to the Borrowers. The amount of the line of credit (the
"Commitment") is Five Million and No/l00 Dollars ($5,000,000.00).
(b) This is a revolving line of credit with a within line facility for
letters of credit. During the availability period, the Borrowers may
repay principal amounts and reborrow them.
(c) The Borrowers agree not to permit the outstanding principal balance of
the line of credit plus the outstanding amounts of any letters of
credit, including amounts drawn on letters of credit and not yet
reimbursed, to exceed the Commitment.
1.2 AVAILABILITY PERIOD. The line of credit is available between the date
of this Agreement and July 1, 2000 (the "Expiration Date") unless any
Borrower is in default.
1.3 INTEREST RATE.
(a) Unless the Borrowers elect an Optional interest rate as described
below, the interest rate is the Reference Rate minus 0.25 percentage
point(s).
(b) The Reference Rate is the rate of interest publicly announced from time
to time by the Bank in San Francisco, California, as its Reference
Rate. The Reference Rate is set by the Bank based on various factors,
including the Bank's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans. The Bank may price loans to its customers at, above
or below the Reference Rate. Any change in the Reference Rate shall
take effect at the opening of business on the day specified in the
public announcement of a change in the Bank's Reference Rate.
1.4 REPAYMENT TERMS.
(a) The Borrowers will pay interest on October 1, 1998 and on the first day
of each month thereafter until payment in full of any principal
outstanding under this line of credit.
(b) The Borrowers will repay in full all principal and any unpaid interest
or other charges outstanding under this line of credit no later than
the Expiration Date.
1.5 OPTIONAL INTEREST RATES. Instead of the interest rate based on the
Reference Rate, the Borrowers may elect to have all or portions of the line
of credit (during the availability period) bear interest at the rate(s)
described below during an interest period agreed to by the Bank and the
Borrowers. Each interest rate is a rate per year. Interest will be paid on
the last day of each Interest period, and on the first day of each month
during the interest period. At the end of any interest period, the interest
rate will revert to the rate based on the Reference Rate, unless the
Borrowers have designated another optional interest rate for the portion.
1.6 FIXED RATE. The Borrowers may elect to have all or portions of the principal
balance of the line of credit bear interest at the Fixed Rate, subject to the
following requirements:
(a) The "Fixed Rate" means the fixed interest rate the Bank and the
Borrowers agree will apply to the portion during the applicable
interest period.
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(b) The interest period during which the Fixed Rate will be in effect will
be one year or less.
(c) Each Fixed Rate portion will be for an amount not less than the
following:
(i) for interest periods of 15 days or longer, Two Million Dollars
($2,000,000)
(ii) for interest periods of 1 to 3 days, Five Million Dollars
($5,000,000).
(iii) for interest periods of between 4 days and 13 days, an amount
which, when multiplied by the number of days in the applicable
interest period, is not less than thirty million (30,000,000)
dollar-days.
(d) The Borrowers may not elect a Fixed Rate with respect to any portion of
the principal balance of the line of credit which is scheduled to be
repaid before the last day of the applicable interest period.
(e) Any portion of the principal balance of the line of credit already
bearing interest at the Fixed Rate will not be converted to a different
rate during its interest period.
(f) Each prepayment of a Fixed Rate portion, whether voluntary, by reason
of acceleration or otherwise, will be accompanied by the amount of
accrued interest on the amount prepaid, and a prepayment fee equal to
the amount (if any) by which:
(i) the additional interest which would have been payable on the
amount prepaid had it not been paid until the last day of the
interest period, exceeds
(ii) the interest which would have been recoverable by the Bank by
placing the amount prepaid on deposit in the certificate of
deposit market for a period starting on the date on which it
was prepaid and ending on the last day of the interest period
for such portion.
1.7 LIBOR RATE. The Borrower may elect to have all or portions of the principal
balance of the line of credit bear interest at the LIBOR Rate plus 1.75
percentage points.
Designation of a LIBOR Rate portion is subject to the following requirements:
(a) The interest period during which the LIBOR Rate will be in effect will
be 30, 60, 90, or 180 days. The last day of the interest period and the
actual number of days during the interest period will be determined by
the Bank using the practices of the London inter-bank market
(b) Each LIBOR Rate portion will be for an amount not less than One Million
Dollars ($1,000,000).
(c) The "LI BOR Rate" means the interest rate determined by the following
formula, rounded upward to the nearest 11100 of one percent (All
amounts in the calculation will be determined by the Bank as of the
first day of the interest period.)
LIBOR Rate = London Inter-Bank Offered Rate
(1.00- Reserve Percentage)
Where,
(i) "London Inter-Bank Offered Rate" means the Interest rate at
which the Bank's London Branch, London, Great Britain, would
offer U.S. dollar deposits for the applicable interest period
to other major banks in the London inter-bank market at
approximately 11:00 a.m. London time two (2) London Banking
Days before the commencement of the interest period. A "London
Banking Day" is a day on which the Bank's London Branch is
open for business and dealing in offshore dollars.
(ii) "Reserve Percentage" means the total of the maximum reserve
percentages for determining the reserves to be maintained by
member banks of the Federal Reserve System for Eurocurrency
Liabilities, as defined in the Federal Reserve Board
Regulation D, rounded upward to the nearest 1/100 of one
percent. The percentage will be expressed as a decimal, and
will include, but not be limited to, marginal, emergency,
supplemental, special, and other reserve percentages.
(d) The Borrower shall irrevocably request a LIBOR Rate portion no later
than 9:00 a.m. Phoenix time three (3) banking days before the
commencement of the interest period.
(e) The Borrower may not elect a LIBOR Rate with respect to any portion of
the principal balance of the line of credit
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which is scheduled to be repaid before the last day of the applicable
interest period.
(f) Any portion of the principal balance of the line of credit already
bearing interest at the LIBOR Rate will not be converted to a different
rate during its interest period.
(g) Each prepayment of a LIBOR Rate portion, whether voluntary, by reason
of acceleration or otherwise, will be accompanied by the amount of
accrued interest on the amount pre paid and a prepayment fee as
described below. A "prepayment", for the purposes of this paragraph, is
a payment of an amount on a date earlier than the scheduled payment
date for such amount as required by this Agreement The prepayment fee
shall be equal to the amount (if any) by which:
(i) the additional interest which would have been payable during
the interest period on the amount prepaid had it not been
prepaid, exceeds
(ii) the interest which would have been recoverable by the Bank by
placing the amount prepaid on deposit in the domestic
certificate of deposit market, the eurodollar deposit market,
or other appropriate money market selected by the Bank, for a
period starting on the date on which it was prepaid and ending
on the last day of the interest period for such portion (or
the scheduled payment date for the amount prepaid, if
earlier).
(h) The Bank will have no obligation to accept an election for a LIBOR Rate
portion if any of the following described events has occurred and is
continuing:
(i) Dollar deposits in the principal amount, and for periods equal
to the interest period, of a LIBOR Rate portion are not
available in the London inter-bank market; or
(ii) the LIBOR Rate does not accurately reflect the cost of a LIBOR
Rate portion.
1.8 OFFSHORE RATE. The Borrowers may elect to have all or portions of the
principal balance of the line of credit bear interest at the Offshore Rate plus
1.75 percentage points.
Designation of an Offshore Rate portion is subject to the following
requirements:
(a) The interest period during which the Offshore Rate will be in effect
will be no shorter than 30 days and no longer than six months. The last
day of the interest period will be determined by the Bank using the
practices of the offshore dollar inter-bank market
(b) Each Offshore Rate portion will be for an amount not less than One
Million dollars ($1,000,000).
(c) The "Offshore Rate" means the Interest rate determined by the following
formula, rounded upward to the nearest 11100 of one percent (All
amounts in the calculation will be determined by the Bank as of the
first day of the interest period.)
Offshore Rate = Grand Cayman Rate
(1.00- Reserve Percentage)
Where,
(i) "Grand Cayman Rate" means the interest rate (rounded upward to
the nearest 1115th of one percent) at which the Bank's Grand
Cayman Branch, Grand Cayman, British West Indies, would offer
U.S. dollar deposits for the applicable interest period to
other major banks in the offshore dollar inter-bank markets.
(ii) "Reserve Percentages" means the total of the maximum reserve
percentages for determining the reserves to be maintained by
member banks of the Federal Reserve System for Eurocurrency
Liabilities, as defined in Federal Reserve Board Regulation D,
rounded upward to the nearest 1/100 of one percent The
percentage will be expressed as a decimal, and will include,
but not be limited to, marginal, emergency, supplemental,
special, and other reserve percentages.
(d) The Borrowers may not elect an Offshore Rate with respect to any
portion of the principal balance of the line of credit which is
scheduled to be repaid before the last day of the applicable interest
period.
(e) Any portion of the principal balance of the line of credit already
bearing interest at the Offshore Rate will not be converted to a
different rate during its interest period.
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(f) Each prepayment of an Offshore Rate portion, whether voluntary, by
reason of acceleration or otherwise, will be accompanied by the amount
of accrued interest on the amount prepaid; and a prepayment fee equal
to the amount (if any) by which:
(i) the additional interest which would have been payable on the
amount prepaid had it not been paid until the last day of the
interest period, exceeds
(ii) the interest which would have been recoverable by the Bank by
placing the amount prepaid on deposit in the offshore dollar
market for a period starting on the date on which it was
prepaid and ending on the last day of the interest period for
such portion.
(g) The Bank will have no obligation to accept an election for an Offshore
Rate portion if any of the following described events has occurred and
is continuing:
(i) Dollar deposits in the principal amount, and for periods equal
to the interest period, of an Offshore Rate portion are not
available in the offshore Dollar inter-bank markets; or
(ii) the Offshore Rate does not accurately reflect the cost of an
Offshore Rate portion.
1.9 LETTERS OF CREDIT This line of credit may be used for financing standby
letters of credit with a maximum maturity of July 1, 2000 but not to extend more
than 30 days beyond the Expiration Date.
The amount of letters of credit outstanding at any one time (including amounts
drawn on letters of credit and not yet reimbursed) may not exceed One Million
and No/100 Dollars ($1,000,000.00) for standby letters of credit
The Borrower agrees: (a) any sum drawn under a letter of credit may, at the
option of the Bank, be added to the principal amount outstanding under this
Agreement The amount will bear interest and be due as described elsewhere in
this Agreement. (b) if there is a default under this Agreement, to immediately
prepay and make the Bank whole for any outstanding letters of credit (c) the
issuance of any letter of credit and any amendment to a letter of credit is
subject to the Bank's written approval and must be in form and content
satisfactory to the Bank and in favor of a beneficiary acceptable to the Bank
(d) to sign the Bank's form or Application and Agreement for Standby Letter of
Credit (e) to pay any issuance and/or other fees that the Bank notifies the
Borrower will be charged for issuing and processing letters of credit for the
Borrower. (f) to allow the Bank to automatically charge its checking account for
applicable fees, discounts, and other charges.
2. FEES AND EXPENSES
2.1 UNUSED COMMITMENT FEE. The Borrowers agree to pay a fee on any
difference between the Commitment and the amount of credit the
Borrowers actually use, determined by the weighted average loan balance
maintained during the specified period. The fee will be calculated at
0.125%, respectively. The fee is due and payable quarterly in arrears
at the end of each fiscal quarter beginning September 30, 1998.
2.2 EXPENSES. The Borrowers agree to immediately repay the Bank for
expenses that include, but are not limited recording and search fees,
appraisal fees, UUe report fees, and documentation fees.
2.3 REIMBURSEMENT COSTS.
(a) The Borrowers agree to reimburse the Bank for any expenses it incurs in
the preparation of this Agreement and any agreement or instrument
required by this Agreement Expenses include, but are not limited to,
reasonable attorneys' fees, including any allocated costs of the Bank's
In-house counsel.
(b) The Borrowers agree to reimburse the Bank for the cost of periodic
audits and appraisals of the personal property collateral securing this
Agreement, at such intervals as the Bank may reasonably require. The
audits and appraisals may be performed by employees of the Bank or by
independent appraisers.
3. COLLATERAL
3.1 PERSONAL PROPERTY. The Borrowers' obligations to the Bank under this
Agreement will be secured by personal property the Borrowers now own or will own
in the future as listed below. The collateral is further defined in security
agreement(s) executed by the Borrowers.
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In addition, all personal property collateral securing this Agreement shall also
secure all other present and future obligations of the Borrowers or any one of
them to the Bank (excluding any consumer credit covered by the federal Truth in
Lending law, unless the Borrowers have otherwise agreed in writing). All
personal property collateral securing any other present or future obligations of
the Borrowers or any one of them to the Bank shall also secure this Agreement.
(a) Machinery and equipment.
(b) Receivables.
(c) Patents, trademarks and other general intangibles.
4. DISBURSEMENTS, PAYMENTS AND COSTS
4.1 REQUESTS FOR CREDIT. Each request for an extension of credit will be made in
writing in a manner acceptable to the Bank, or by another means acceptable to
the Bank.
4.2 DISBURSEMENTS AND PAYMENTS. Each disbursement by the Bank and each
payment by the Borrowers will be:
(a) made at the Bank's branch (or other location) selected by the Bank from
time to time;
(b) made for the account of the Bank's branch selected by the Bank from
time to time;
(c) made in immediately available funds, or such other type of funds
selected by the Bank;
(d) evidenced by records kept by the Bank. In addition, the Bank may, at
its discretion, require the Borrowers to sign one or more promissory
notes.
4.3 TELEPHONE AND TELEFAX AUTHORIZATION.
(a) The Bank may honor telephone or telefax instructions for advances or
repayments or for the designation of optional interest rates or the
issuance of letters of credit given by any one of the individual
signer(s) of this Agreement or a person or persons authorized in
writing by any one of the signer(s) of this Agreement.
(b) Advances will be deposited in and repayments will be withdrawn from
Borrower 1's account number 054-810607, or such other of the Borrowers'
accounts with the Bank as designated in writing by the Borrowers.
(c) The Borrowers indemnity and excuse the Bank (including its officers,
employees, and agents) from all liability, loss, and costs in
connection with any act resulting from telephone or telefax
instructions it reasonably believes are made by any individual
authorized by the Borrowers to give such Instructions. This indemnity
and excuse will survive this Agreement's termination.
4.4 DIRECT DEBIT.
(a) The Borrowers agree that interest and principal payments and any fees
will be deducted automatically on the due date from Borrower 1's
account number 054-8l0607, or such other of the Borrowers' accounts
with the Bank as designated In writing by the Borrowers (the
"Designated Account").
(b) The Bank will debit the account on the dates the payments become due.
If a due date does not tall on a banking day, the Bank will debit the
account on the first banking day following the due date.
(c) The Borrowers will maintain sufficient funds in the account on the
dates the Bank enters debits authorized by this Agreement. If there are
insufficient funds in the account on the date the Bank enters any debit
authorized by this Agreement, the debit will be reversed.
4.5 BANKING DAYS. Unless otherwise provided in this Agreement, a banking day is
a day other than a Saturday or a Sunday on which the Bank is open for business
in Arizona. For amounts bearing interest at an offshore rate (if any), a banking
day is a day other than a Saturday or a Sunday on which the Bank is open for
business in California and is dealing in offshore dollars. All payments and
disbursements which would be due on a day which is not a banking day will be due
on the next banking day. All payments received on a day which is not a banking
day will be applied to the credit on the next banking day.
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4.6 INTEREST CALCULATION. Except as otherwise stated in this Agreement, all
interest and fees, if any, will be computed on the basis of a 360-day year and
the actual number of days elapsed. This results in more interest or a higher fee
than if a 365-day year is used.
4.7 INTEREST ON LATE PAYMENTS. At the Bank's sole option in each instance, any
amount not paid when due under this Agreement (including interest) shall bear
interest from the due date at the Reference Rate plus 1.00 percentage points.
This may result in compounding of interest
4.8 DEFAULT RATE. Upon the occurrence and during the continuation of any default
under this Agreement, advances under this Agreement will at the option of the
Bank bear interest at a rate per annum which is 1.50 percentage point(s) higher
than the rate of interest otherwise under this Agreement. This will not
constitute a waiver of any default.
5. CONDITIONS The Bank must receive the following items, in form and content
acceptable to the Bank, before it is required to extend any credit to the
Borrowers under this Agreement
5.1 AUTHORIZATIONS. Evidence that the execution, delivery and performance by
each Borrower of this Agreement and any instrument or agreement required under
this Agreement have been duly authorized.
5.2 GOVERNING DOCUMENTS. A copy of each Borrower's articles of incorporation.
5.3 SECURITY AGREEMENTS. Signed original security agreements, assignments, and
financing statements (together with collateral in which the Bank requires a
possessory security interest), which the Bank requires.
5.4 EVIDENCE OF PRIORITY. Evidence that security interests and liens in favor of
the Bank are valid, enforceable, and prior to all others' rights and interests,
except those the Bank consents to in writing.
5.5 INSURANCE. Evidence of insurance coverage, as required in the "Covenants"
section of this Agreement.
5.6 OTHER REQUIREMENTS. Prior to the initial advance for each acquisition on
Facility No. 2, Borrower to demonstrate on a pro-forma combined basis compliance
with Paragraph 8.5 (Maximum Senior Funded Debt to EBITDA) for one preceding and
one forecasted year by combining the consolidated financial statements of the
Borrowers and the financial statements of the targeted acquisitions. All
acquisitions to be friendly in nature and in a similar line of business.
5.7 OTHER ITEMS. Any other Items that the Bank reasonably requires.
6. REPRESENTATIONS AND WARRANTIES. When the Borrowers sign this Agreement, and
until the Bank is repaid in full, each Borrower makes the following
representations and warranties. Each request for an extension of credit
constitutes a renewed representation.
6.1 ORGANIZATION OF BORROWERS. Each Borrower is a corporation duly formed and
existing under the laws of the state where organized.
6.2 AUTHORIZATION. This Agreement, and any instrument or agreement required
hereunder, are within each Borrower's powers, have been duly authorized, and do
not conflict with any of its organizational papers.
6.3 ENFORCEABLE AGREEMENT. This Agreement, and each other agreement or document
executed and delivered to the Bank in connection with this Agreement, is a
legal, valid and binding agreement of each Borrower, enforceable against each
Borrower in accordance with its terms, and any instrument or agreement required
hereunder, when executed and delivered, will be similarly legal, valid, binding
and enforceable.
6.4 GOOD STANDING. In each state in which each Borrower does business, it is
properly licensed, in good standing, and, where required, in compliance with
fictitious name statutes.
6.5 NO CONFLICTS. This Agreement does not conflict with any law, agreement, or
obligation by which any Borrower is bound
6.6 FINANCIAL INFORMATION. All financial and other information that has been or
will be supplied to the Bank is:
(a) sufficiently complete to give the Bank accurate knowledge of the Borrowers'
financial condition.
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(b) in form and content required by the Bank
(c) in compliance with all government regulations that apply.
6.7 LAWSUITS. There is no lawsuit, tax claim or other dispute pending or
threatened against any Borrower, which, if lost, would impair the Borrowers' or
any Borrower's financial condition or ability to repay the loan, except as have
been disclosed in writing to the Bank prior to the date of this Agreement
6.8 COLLATERAL. All collateral required in this Agreement is owned by the
grantor of the security interest free of any title defects or any liens or
interests of others.
6.9 PERMITS, FRANCHISES. Each Borrower possesses all permits, memberships,
franchises, contracts and licenses required and all trademark rights, trade name
rights, patent rights and fictitious name rights necessary to enable it to
conduct the business in which it is now engaged
6.10 OTHER OBLIGATIONS. No Borrower is in default on any obligation for borrowed
money, any purchase money obligation or any other material lease, commitment,
contract:, instrument or obligation except as have been disclosed in writing to
the Bank.
6.11 INCOME TAX RETURNS. No Borrower has knowledge of any pending assessments or
adjustments of its income tax for any year, except as have been disclosed in
writing to the Bank.
6.12 NO EVENT OF DEFAULT. There is no event which is, or with notice or lapse of
time or both would be, a default under this Agreement.
6.13 LOCATION OF BORROWERS. Each Borrower's place of business (or, if any
Borrower has more than one place of business, its chief executive office) is
located at the address listed under the Borrowers' signature on this Agreement.
6.14 REPRESENTATIONS CONCERNING THE YEAR 2000. On the basis of a comprehensive
review and assessment of Borrowers' systems and equipment and inquiry made of
Borrowers' material suppliers, vendors and customers, Borrowers reasonably
believe that the "Year 2000 problem" (that is, the inability of computers, as
well as embedded microchips in non-computing devices, to perform properly
date-sensitive functions with respect to certain dates prior to and after
December 31, 1999), including costs of remediation, will not result in a
material adverse change in the operations, business properties, condition
(financial or otherwise) of Borrowers. Borrowers have developed feasible
contingency plans to adequately ensure uninterrupted and unimpaired business
operation in the event of failure of their own or a third party's systems or
equipment due to the Year 2000 problem, including those of vendors, customers,
and suppliers, as well as a general failure of or interruption in their
communications and delivery infrastructure.
7. COVENANTS Each Borrower agrees that so long as credit is available under this
Agreement and until the Bank is repaid in full:
7.1 USE OF PROCEEDS. To use the proceeds of the credit only for working capital.
7.2 FINANCIAL INFORMATION. To provide the following financial information and
statements and such additional information as requested by the Bank from time to
time:
(a) Within 90 days of the Borrowers' fiscal year end, the Borrower's annual
financial statements together with Borrowers' or CPA prepared
consolidating schedules. These financial statements must be audited
(with an unqualified opinion) by a Certified Public Accountant ("CPA")
acceptable to the Bank. The statements shall be prepared on a
consolidated basis.
(b) Copies of the Borrowers' Form 10-Q Quarterly Report, with consolidating
schedules, within 50 days of each quarter end.
(c) Within 90 days of the Borrowers' fiscal year end, the Borrower's annual
projection of income statement.
7.3 QUICK RATIO. The Borrowers to maintain on a consolidated basis a ratio of
quick assets to current liabilities of 1.75:1.0, to be measured quarterly.
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"Quick assets" means cash, short-term cash investments and net trade
receivables. Current liabilities are to include Bank lines of credit, exclusive
of Facility No. 2 after July 31, 1999.
7.4 TOTAL LIABILITIES TO TANGIBLE NET WORTH RATIO. The Borrowers to maintain on
a consolidated basis a ratio of Total Liabilities to Tangible Net Worth not
exceeding 0.50:1.0, to be measured quarterly.
"Total Liabilities" means the sum of current liabilities plus long term
liabilities.
"Tangible net worth" means the gross book value of the Borrowers assets on a
consolidated basis (excluding goodwill, patents, trademarks, trade names,
organization expense, treasury stock, unamortized debt discount and expense,
deferred research and development costs, deferred marketing expenses, and other
like intangibles) less total liabilities, including but not limited to accrued
and deferred income taxes, and any reserves against assets.
7.5 NET LOSS. Not to incur a net loss in any two consecutive quarters or on a
fiscal year end basis, excluding the non-cash recurring charges on a one time
basis relating to the Xxxxxx Retail acquisition.
7.6 OTHER DEBTS. Not to have outstanding or incur any direct or contingent debts
or lease obligations (other than those to the Bank), or become liable for the
debts of others without the Bank's written consent. This does not prohibit:
(a) Acquiring goods, supplies, or merchandise on normal trade credit
(b) Endorsing negotiable instruments received in the usual course of
business.
(c) Obtaining surety bonds in the usual course of business.
(d) Debts and lines of credit and leases in existence on the date of this
Agreement disclosed in writing to the Bank
(e) Additional debts and lease obligations for the acquisition of fixed or
capital assets, to the extent permitted elsewhere in this Agreement.
(f) Additional debts and lease obligations of Borrowers for business
purposes which do not exceed a total principal amount of Five Hundred
Thousand and No/100 Dollars ($500,000.00) outstanding at any one time.
7.7 OTHER LIENS. Not to create, assume, or allow any security interest or lien
(including judicial liens) on property any Borrower now or later owns, except
(a) Deeds of trust and security agreements in favor of the Bank
(b) Liens for taxes not yet due.
(c) Liens outstanding on the date of this Agreement disclosed in writing to
the Bank.
(d) Additional purchase money security interests in personal property
acquired after the date of this Agreement, if the total principal
amount of debts secured by such liens does not exceed Five Hundred
Thousand and No/100 Dollars ($500,000.00) at any one time.
7.8 OUT OF DEBT PERIOD. To repay any advances in full, and not to draw any
additional advances on the Borrowers' revolving line of credit, for a period of
at least 30 consecutive days during each calendar year.
7.9 NOTICES TO BANK. To promptly notify the Bank in writing of:
(a) any lawsuit over Five Hundred Thousand and No/l00 Dollars ($500,000.00)
against any one or more of the Borrowers.
(b) any substantial dispute between any Borrower and any government
authority.
(c) any failure to comply with this Agreement
(d) any material adverse change in any Borrower's financial condition or
operations.
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(e) any change in any Borrower's name, legal structure, place of business,
or chief executive office if such Borrower has more than one place of
business.
7.10 BOOKS AND RECORDS. To maintain adequate books and records.
7.11 AUDITS. To allow the Bank and its agents to inspect the Borrowers'
properties and examine, audit, and make copies of books and records at
any reasonable time. If any of the Borrowers' properties, books or
records are in the possession of a third party, the Borrowers authorize
that third party to permit the Bank or its agents to have access to
perform inspections or audits and to respond to the Bank's requests for
information concerning such properties, books and records.
7.12 COMPLIANCE WITH LAWS. To comply with the laws1 (including any
fictitious name statute), regulations, and orders of any government
body with authority over each Borrower's business.
7.13 PRESERVATION OF RIGHTS. To maintain and preserve all rights,
privileges, and franchises each Borrower now has.
7.14 MAINTENANCE OF PROPERTIES. To make any repairs, renewals, or
replacements to keep each Borrower's properties in good working
condition.
7.15 PERFECTION OF LIENS. To help the Bank perfect and protect its security
interests and liens, and reimburse it for related costs it incurs to
protect its security interests and liens.
7.16 COOPERATION. To take any action requested by the Bank to carry out the
intent of this Agreement.
7.17 INSURANCE.
(a) INSURANCE COVERING COLLATERAL. To maintain all risk property damage
insurance policies covering the tangible property comprising the
collateral. Each insurance policy must be in an amount acceptable to
the Bank. The insurance must be issued by an insurance company
acceptable to the Bank and must include a lender's loss payable
endorsement in favor of the Bank in a form acceptable to the Bank.
(b) GENERAL BUSINESS INSURANCE. To maintain insurance satisfactory to the
Bank as to amount, nature and carrier covering property damage
(including loss of use and occupancy) to any of the Borrowers'
properties, public liability insurance including coverage for
contractual liability, product liability and workers' compensation, and
any other Insurance which is usual for the Borrowers' business.
(c) EVIDENCE OF INSURANCE. Upon the request of the Bank, to deliver to the
Bank a copy of each insurance policy or, if permitted by the Bank, a
certificate of insurance listing all insurance in force.
7.18 ADDITIONAL NEGATIVE COVENANTS. Not to, without the Bank's written
consent:
(a) permit any Borrower to engage in any business activities substantially
different from such Borrower's present business.
(b) liquidate or dissolve the Borrowers' business.
(c) enter into any consolidation, merger, pool, syndicate, or other
combination.
(d) lease, or dispose of all or a substantial part of the Borrowers' or any
Borrower's business or the Borrowers' or any Borrower's assets.
(e) sell or otherwise dispose of any assets for less than fair market value
or enter into any sale and leaseback agreement covering any of the
Borrowers' or any Borrower's fixed or capital assets.
(f) voluntarily suspend the Borrowers' or any Borrower's business.
8. DEFAULT. If any of the following events occur, the Bank may do one or more of
the following: declare the Borrowers in default, stop making any additional
credit available to the Borrowers, and require the Borrowers to repay its entire
debt immediately and without prior notice. If an event of default occurs under
the paragraph entitled
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"Bankruptcy" below with respect to any Borrower, the entire debt outstanding
under this Agreement will automatically be due immediately.
8.1 FAILURE TO PAY. Any Borrower fails to make a payment under this Agreement
when due.
8.2 LIEN PRIORITY. The Bank fails to have an enforceable first lien (except for
any prior liens to which the Bank has consented in writing) on or security
interest in any property given as security for the extensions of credit under
this Agreement
8.3 FALSE INFORMATION. Any Borrower has given the Bank false or misleading
information or representations.
8.4 DEATH. Any Borrower dies; or if any Borrower is a corporation, any principal
officer or majority stockholder dies.
8.5 BANKRUPTCY. Any Borrower files a bankruptcy petition, a bankruptcy petition
is filed against any Borrower, or any Borrower makes a general assignment for
the benefit of creditors.
8.6 RECEIVERS. A receiver or similar official is appointed for any Borrower's
business, or the business is terminated.
8.7 LAWSUITS. Any lawsuit or lawsuits are filed on behalf of one or more trade
creditors against any one or more of Borrowers in an aggregate amount of One
Million and No/100 Dollars ($1,000,000.00) or more in excess of any insurance
coverage.
8.8 JUDGMENTS. Any judgments or arbitration awards are entered against any one
or more of Borrowers, or any one or more of Borrowers enters into any settlement
agreements with respect to any litigation or arbitration, in an aggregate amount
of Five Hundred Thousand and No/100 Dollars ($500,000.00) or more in excess of
any insurance coverage.
8.9 GOVERNMENT ACTION. Any government authority takes action that the Bank
believes materially adversely affects any Borrower's financial condition or
ability to repay.
8.10 MATERIAL ADVERSE CHANGE. A material adverse change occurs in any Borrower's
financial condition, properties or prospects, or ability to repay the extensions
of credit under this Agreement.
8.11 CROSS-DEFAULT. My default occurs under any agreement in connection with any
credit any Borrower has obtained from anyone else or which any Borrower or any
of the Borrowers' related entities or affiliates has guaranteed in the amount of
Two Hundred Thousand and No/100 Dollars ($200,000.00) or more in the aggregate.
8.12 DEFAULT UNDER RELATED DOCUMENTS. Any guaranty, subordination agreement,
security agreement, deed of trust, or other document required by this Agreement
is violated or no longer in effect.
8.13 OTHER BANK AGREEMENTS. Any Borrower fails to meet the conditions of, or
fails to perform any obligation under any other agreement any Borrower has with
the Bank or any affiliate of the Bank.
8.14 OTHER BREACH UNDER AGREEMENT. Any Borrower fails to meet the conditions of,
or fails to perform any obligation under, any term of this Agreement not
specifically referred to in this Article.
9. ENFORCING THIS AGREEMENT; MISCELLANEOUS
9.1 GAAP. Except as otherwise stated in this Agreement, all financial
information provided to the Bank and all financial covenants will be made under
generally accepted accounting principles, consistently applied.
9.2 ARIZONA LAW. This Agreement is governed by Arizona law.
9.3 SUCCESSORS AND ASSIGNS. This Agreement is binding on the Borrowers' and the
Bank's successors and assignees. The Borrowers agree that they may not assign
this Agreement without the Bank's prior consent The Bank may sell participations
in or assign this loan, and may exchange financial Information about the
Borrowers with actual or potential participants or assignees. If a participation
is sold or the loan is assigned, the purchaser will have the right of set-off
against the Borrowers.
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9.4 ARBITRATION.
(a) This paragraph concerns the resolution of any controversies or claims
between any one or more of Borrowers and the Bank, including but not
limited to those that arise from:
(i) This Agreement (including any renewals, extensions or modifications
of this Agreement);
(ii) Any document, agreement or procedure related to or delivered in
connection with this Agreement;
(iii) Any violation of this Agreement; or
(iv) Any claims for damages resulting from any business conducted
between any one or more Borrowers and the Bank, including claims for
injury to persons, property or business interests (torts).
(b) At the request of any Borrower or the Bank, any such controversies or
claims will be settled by arbitration in accordance with the United
States Arbitration Act The United States Arbitration Act will apply
even though this Agreement provides that it is governed by Arizona law.
(c) Arbitration proceedings will be administered by the American
Arbitration Association and will be subject to its commercial rules of
arbitration.
(d) For purposes of the application of the statute of limitations, the
filing of an arbitration pursuant to this paragraph is the equivalent
of the filing of a lawsuit, and any claim or controversy which may be
arbitrated under this paragraph is subject to any applicable statute of
limitations. The arbitrators will have the authority to decide whether
any such claim or controversy is barred by the statute of limitations
and, if so, to dismiss the arbitration on that basis.
(e) If there is a dispute as to whether an issue is arbitrable, the
arbitrators will have the authority to resolve any such dispute.
(f) The decision that results from an arbitration proceeding may be
submitted to any authorized court of law to be confirmed and enforced.
(g) This provision does not limit the right of the Borrowers or the Bank to:
(i) exercise self-help remedies such as setoff;
(ii) foreclose against or sell any real or personal property
collateral; or
(iii) act in a court of law, before, during or after the arbitration
proceeding to obtain:
(A) an interim remedy; and/or
(B) additional or supplementary remedies.
(h) The pursuit of or a successful action for interim, additional or
supplementary remedies, or the filing of a court action, does not
constitute a waiver of the right of the Borrowers or the Bank,
including the suing party, to Submit the controversy or claim to
arbitration if the other party contests the lawsuit.
(i) If the Bank forecloses against any real property securing this
Agreement, the Bank has the option to exercise the power of sale under
the deed of trust or mortgage, or to proceed by judicial foreclosure.
9.5 SEVERABILITY; WAIVERS. If any part of this Agreement is not enforceable, the
rest of the Agreement may be enforced. The Bank retains all fights, even if it
makes a loan after default. If the Bank waives a default, it may enforce a later
default. Any consent or waiver under this Agreement must be in writing.
9.6 ADMINISTRATION COSTS. The Borrowers shall pay the Bank for all reasonable
costs incurred by the Bank In connection with administering this Agreement.
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9.7 ATTORNEYS' FEES. The Borrowers shall reimburse the Bank for any reasonable
costs and attorneys' fees incurred by the Bank in connection with the
enforcement or preservation of any rights or remedies under this Agreement and
any other documents executed in connection with this Agreement, and including
any amendment, waiver, "workout" or restructuring under this Agreement. In the
event of a lawsuit or arbitration proceeding, the prevailing party is entitled
to recover costs and reasonable attorneys' fees incurred in connection with the
lawsuit or arbitration proceeding, as determined by the court or arbitrator. As
used in this paragraph, "attorneys' fees" includes the allocated costs of
in-house counsel.
9.8 JOINT AND SEVERAL LIABILITY.
(a) Each Borrower agrees that it is jointly and severally liable to the
Bank for the payment of all obligations arising under this
Agreement, and that such liability is independent of the
obligations of the other Borrower(s). The Bank may bring an action
against any Borrower, whether an action is brought against the
other Borrower(s).
(b) Each Borrower agrees that any release which may be given by the
Bank to the other Borrower(s) or any guarantor will not release
such Borrower from its obligations under this Agreement
(c) Each Borrower waives any right to assert against the Bank any
defense, setoff, counterclaim, or claims which such Borrower may
have against the other Borrower(s) or any other party liable to the
Bank for the obligations of the Borrowers under this Agreement.
(d) Each Borrower agrees that it is solely responsible for keeping
itself informed as to the financial condition of the other
Borrower(s) and of all circumstances which bear upon the risk of
nonpayment. Each Borrower waives any right it may have to require
the Bank to disclose to such Borrower any information which the
Bank may now or hereafter acquire concerning the financial
condition of the other Borrower(s).
(e) Each Borrower waives all rights to notices of default or
nonperformance by any other Borrower under this Agreement Each
Borrower further waives all rights to notices of the existence or
the creation of new indebtedness by any other Borrower.
(f) The Borrowers represent and warrant to the Bank that each will
derive benefit, directly and indirectly, from the collective
administration and availability of credit under this Agreement. The
Borrowers agree that the Bank will not be required to inquire as to
the disposition by any Borrower of funds disbursed in accordance
with the terms of this Agreement.
(g) Each Borrower waives any right of subrogation, reimbursement,
indemnification and contribution (contractual, statutory or
otherwise), including without limitation, any claim or right of
subrogation under the Bankruptcy Code (Title 11 of the U.S. Code)
or any successor statute, which such Borrower may now or hereafter
have against any other Borrower with respect to the indebtedness
incurred under this Agreement. Each Borrower waives any right to
enforce any remedy which the Bank now has or may hereafter have
against any other Borrower, and waives any benefit of, and any
right to participate in, any security now or hereafter held by the
Bank.
9.9 ONE AGREEMENT. This Agreement and any related security or other agreements
required by this Agreement, collectively:
(a) represent the sum of the understandings and agreements between the Bank
and the Borrowers concerning Ibis credit; and
(b) replace any prior oral or written agreements between the Bank and the
Borrowers concerning this credit; and
(c) are intended by the Bank and the Borrowers as the final, complete and
exclusive statement of the terms agreed to by them.
In the event of any conflict between this Agreement and any other agreements
required by this Agreement, this Agreement will prevail.
9.10 EXCHANGE OF INFORMATION. The Borrowers agree that the Bank may exchange
financial information about the Borrowers with BankAmerica Corporation
affiliates and other related entities.
13
9.11 USURY LAWS. This paragraph covers the transactions described in this
Agreement and any other agreements with the Bank or its affiliates executed in
connection with this Agreement, to the extent they are subject to the Arizona
usury laws (the 'Transactions"). The Borrowers understand and believe that the
Transactions comply with the Arizona usury laws. However, if any interest or
other charges paid or payable in connection with the Transactions are ever
determined to exceed the maximum amount permitted by law, the Borrowers agree
that:
(a) the amount of interest or other charges payable by the Borrowers
pursuant to the Transactions shall be reduced to the maximum amount
permitted by law; and
(b) any excess amount previously collected from the Borrowers in connection
with the Transactions which exceeded the maximum amount permitted by
law will be credited against the then outstanding principal balance. If
the outstanding principal balance has been repaid in lull, the excess
amount paid will be refunded to the Borrowers.
All fees, charges, goods, things in action or any other sums or things of value1
other than interest at the interest rate described in this Agreement, paid or
payable by the Borrowers (collectively the "Additional Sums"), that may be
deemed to be interest with respect to the Transactions, shall, for the purpose
of any laws of the State of Arizona that may limit the maximum amount of
interest to be charged with respect to the Transactions, be payable by Borrowers
as, and shall be deemed to be, additional interest. For such purposes only, the
agreed upon and "contracted for rate of interest of the Transactions shall be
deemed to be increased by the rate of interest resulting from the Additional
Sums.
9.12 NOTICES. All notices required under this Agreement shall be personally
delivered or sent by first class mail, postage prepaid, to the addresses on the
signature page of this Agreement, or to such other addresses as the Bank and the
Borrowers may specify from time to time in writing.
9.1 HEADINGS. Article and paragraph headings are for reference only and shall
not affect the interpretation or meaning of any provisions of this Agreement
9.14 COUNTERPARTS. This Agreement may be executed in as many counterparts as
necessary or convenient, and by the different parties on separate counterparts
each of which, when so executed, shall be deemed an original but all such
counterparts shall constitute but one and the same agreement
9.15 PRIOR AGREEMENT SUPERSEDED. This Agreement supersedes the Business Loan
Agreement entered into as of June 17,1996, between the Bank and the Borrowers,
as such agreement has been amended from time to time prior to the date hereof,
and any credit outstanding thereunder shall be deemed to be outstanding under
this Agreement.
This Agreement is executed as of the date stated at the top of the first page.
Bank of America National Trust and Savings Borrower 1
Association JDA Software, Inc.
By:______________________________ By:_________________________________
Xxxxxx X. Simpson1 Vice President Xxxxxxx X. Xxxxxxxx
Title: V. President/Treasurer/Assistant Secretary
Address where notices to the Bank are to be sent
Borrower 2
Phoenix Commercial Lending #8211 JDA International, Ltd.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
By: :_________________________________
Xxxxxxx X. Xxxxxxxx
Title: V. President/Treasurer/Assistant Secretary
14
BORROWER 3
JDA SOFTWARE GROUP, INC.
By:_________________________________
Xxxxxxx X. Xxxxxxxx
Title: SVP/CFO/Secretary
BORROWER 4
JDA WORLDWIDE, INC.
By:_________________________________
Xxxxxxx X Xxxxxxxx
Title Vice President/Assistant Secretary
BORROWER 5
LIOCS CORPORATION
By
Xxxxxxx X Xxxxxxxx
Title VP/Treasurer/Assistant Secretary
BORROWER 6
JDA ASIA PTE LTD
By:
Xxxxxxx X. Xxxxxxxx
Title: SVP/Treasurer/Assistant Secretary
BORROWER 7
JDA SOFTWARE GMBH
By
Knsten L Xxxxxxxx
Title SVP/Treasurer/Assistant Secretary
BORROWER 8
JDA SOFTWARE CANADA, LTD.
By
Xxxxxxx X Xxxxxxxx
Title SVP/CFO/Treasurer
BORROWER 9
JDA Chile Sociedad Anonima
Xxxxxxx X. Xxxxxxxx
Title: SVP/CFO
15
BORROWER 10
JDA DE MEXICO
Xxxxxxx X Xxxxxxxx
Title: SVP/CFO
Address where notices to the Borrowers are to be sent:
00000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
