EXHIBIT 10(u) TO SYMIX SYSTEMS, INC. 1998 FORM 10-K
THIRD AMENDMENT TO LOAN AGREEMENT AMONG
SYMIX SYSTEMS, INC. and SYMIX COMPUTER SYSTEMS, INC.
AND
BANK ONE, NA
DATED AS OF MAY 20, 1996
THIS THIRD AMENDMENT ("Third Amendment") is dated as of June 1, 1998,
between SYMIX SYSTEMS, INC., an Ohio corporation ("SSI") and SYMIX COMPUTER
SYSTEMS, INC., an Ohio corporation ("SCSI" and, collectively with SSI, the
"Companies") and BANK ONE, NA, a national association ("Bank One").
WITNESSETH:
WHEREAS, the Companies and Bank One, parties to that certain Loan
Agreement dated as of May 20, 1996, amended by First Amendment dated as of
August 13, 1997 and further amended by Second Amendment dated as of March 4,
1998 (the "Agreement"), have agreed to amend the Agreement on the terms and
conditions hereinafter set forth. Terms not otherwise defined herein are
used as defined in the Agreement as amended hereby.
NOW, THEREFORE, the Companies and Bank One hereby agree as follows:
SECTION 1. AMENDMENT OF THE AGREEMENT. The Agreement is, effective the
date hereof, hereby amended as follows:
1.1. Section 1.1.1 shall be amended and restated in its entirety
as follows:
1.1.1. AMOUNT. Bank One hereby agrees to lend the
Borrowers the maximum aggregate amount of Fifteen Million
Dollars ($15,000,000) in the form of revolving credit loans
under the Revolving Credit Notes in the maximum collective
amount of Fifteen Million Dollars ($15,000,000), minus the
drawn or undrawn principal amount of any letter of credit or
other independent undertaking issued by Bank One for the
account of the Borrowers (the "Credit Commitment").
1.2. Section 1.1.2 shall be amended and restated in its entirety as
follows:
1.1.2. DISBURSEMENTS. The Companies shall execute and
deliver to Bank One the amended and restated revolving
credit note in the form of Exhibit A-4 attached hereto (the
"$13,000,000 Revolving Credit Note") and the Borrowers shall
execute and deliver to Bank One the revolving credit note in
the form of Exhibit A-5 attached hereto (the "$2,000,000
Revolving Credit Note" and, collectively with the
$13,000,000 Revolving Credit Note, the "Revolving Credit
Notes"). Bank One may make disbursements to the Borrowers
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from time to time in principal amounts at any one time
outstanding up to an amount that equals the lesser of (a)
the Credit Commitment or (b) the Borrowing Base. Subject to
the terms and conditions of the Agreement, the Borrowers may
borrow, repay and reborrow loans under the Revolving Credit
Notes from Bank One at any time or from time to time,
without penalty, from the date of the Agreement until the
earlier of (a) March 31, 2001 or (b) the date amounts owing
hereunder or under the Revolving Credit Notes become due and
payable, whether through acceleration or any other cause.
1.3. In Section 1.1.4(a) and (b) and in Section 1.2.4(a) and (b),
the word "month" shall be deleted and the word "quarter" shall be inserted in
its place each time it is used. In addition, throughout Section 1.1.4, the
words "October 31, 1999" shall be deleted and the words "March 31, 2001" shall
be inserted in their place.
1.4. In Section 1.1.4(b), the words "two hundred (200) basis
points" shall be deleted and the words "one hundred seventy-five (175) basis
points" shall be inserted in their place.
1.5. Section 1.1.4(c) shall be amended and restated in its entirety
as follows:
LEVERAGE BASED PRICING. If, at the end of any calendar
quarter, the Leverage Ratio is less than or equal to 1.5 to
1.0 and greater than 1.0 to 1.0, the interest rate for the
succeeding calendar quarter shall be adjusted to, as
appropriate, either the Prime Rate minus one-eighth of one
percent (0.125%) or one hundred fifty (150) basis points in
excess of the Benchmark Rate. If, at the end of any
calendar quarter, the Leverage Ratio is less than or equal
to 1.0 to 1.0, the interest rate for the succeeding calendar
quarter shall be adjusted to, as appropriate, either the
Prime Rate minus one-fourth of one percent (0.250%) or one
hundred twenty-five (125) basis points in excess of the
Benchmark Rate.
1.6. In Section 1.1.5, the fraction "three-eighths percent (3/8%)"
shall be deleted and replaced with "one-fourth percent (1/4%)" and the words
"payable quarterly commencing on June 29, 1996" shall be deleted and the words
"payable monthly commencing on June 30, 1998" shall be inserted in their place.
In addition, the following shall be added at the end of the first sentence of
Section 1.1.5: "; PROVIDED, HOWEVER, THAT THE facility fee rate shall be reduced
from one-quarter percent (1/4%) to one-eighth percent (1/8%) if the Companies
usage of the Revolving Credit Note averages more than $7,500,000 for each day
during the month."
1.7. Section 1.2 shall be deleted in its entirety.
1.8. In Section 4.1, the words "Audited Consolidated Financial
Statements" shall be deleted and the words "Audited Consolidated and
Consolidating Financial Statements" shall be inserted in their place.
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1.9. In Section 4.2, the words "Consolidated Financial Statements"
shall be deleted and the words "Consolidated and Consolidating Financial
Statements" shall be inserted in their place.
1.10. The following shall be added to the end of Section 4.3:
The Chief Financial Officer of SSI shall deliver the
Covenant Compliance Certificate to Bank One (in the form
attached hereto as Exhibit 4.3) within 30 days of the end of
each fiscal quarter.
1.11. A new Section 4.18 shall be added to the Agreement as follows:
4.18. ACCOUNTS RECEIVABLE REPORTING. SCSI will furnish to
Bank One as soon as practicable after the end of each
calendar month, and in any event within 10 days thereafter,
a summary Accounts aging report in a format acceptable to
Bank One and a Borrowing Base Certificate for such month.
From time to time, SCSI shall be required to deliver
detailed aging schedules, trial balances, test verifications
of Accounts and other reports reasonably requested by Bank
One.
1.12. A new Section 4.19 shall be added to the Agreement as follows:
4.19. RETENTION OF CERTAIN OFFICERS. The Companies shall
retain the services of Xxxxxxx X. Xxxxxx and Xxxxxxxx X.
XxXxxx, or persons of similar experience and reputation to
serve in such office.
1.13. A new Section 4.20 shall be added to the Agreement as follows:
4.20. PLEDGE OF INTERCOMPANY NOTE. The Companies shall
cause all the Non-Obligor Subsidiaries to execute an
intercompany promissory note that evidences all borrowings
the Non-Obligor Subsidiaries make from the Companies of
funds borrowed under the $13,000,000 Revolving Credit Note,
and the Companies shall deliver such intercompany promissory
note to Bank One as security for the amounts due hereunder
and under the Revolving Credit Notes.
1.14. Section 5.1 shall be amended and restated in its entirety as
follows:
5.1. ENCUMBERING ASSETS. Companies and Subsidiaries shall not
create, incur, assume or permit to continue any mortgage,
pledge, encumbrance, lien or charge of any kind upon or
security interest in any of their or any Subsidiary's
property or assets, whether now owned or hereafter acquired,
except (i) the Pledge Agreement contemplated hereby (as set
forth in Section 6.4 of the Third Amendment to Loan
Agreement dated June 1, 1998),
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(ii) purchase money liens for fixed assets not to exceed an
aggregate amount of Three Million Dollars ($3,000,000), and
(ii) Permitted Liens as defined herein. Companies and
Subsidiaries shall not grant a "negative pledge" of assets,
exemplified by the preceding sentence, to any Person other
than Bank One.
1.15. Section 5.2 shall be amended and restated in its entirety as
follows:
5.2. INCURRING OTHER DEBT. Companies and Subsidiaries
shall not create, incur, assume or suffer to exist any
Funded Debt or Current Debt except: (1) debt represented by
the Notes; (2) other indebtedness to Bank One; (3) purchase
money debt for fixed assets or Seller financing of
acquisitions which shall not exceed an aggregate amount of
Three Million Dollars ($3,000,000); and (4) unsecured
indebtedness to trade creditors arising out of the ordinary
course of Companies' and Subsidiaries' business.
1.16. Section 5.9 shall be amended and restated in its entirety as
follows:
5.9. AMOUNT OF CONSOLIDATED TANGIBLE NET WORTH. Companies
shall not permit Consolidated Tangible Net Worth to be less
than:
(a) $11,500,000 from the date of the Third Amendment
until June 29, 1998;
(b) $13,500,000 from June 30, 1998 until June 29,
1999;
(c) $17,500,000 from June 30, 1999 until June 29,
2000; and
(d) $20,000,000 from and after June 30, 2000.
1.17. Section 5.10 shall be amended and restated in its entirety as
follows:
5.10. LEVERAGE RATIO. Companies shall not permit the
Consolidated Leverage Ratio to exceed the ratio of:
(a) 3.00 to 1.00 from the date of the Third Amendment
to June 29, 1998;
(b) 2.50 to 1.00 from June 30, 1998 until June 29,
1999; and
(c) 2.00 to 1.00 from June 30, 1999 and thereafter.
1.18. Section 5.12 shall be amended and restated in its entirety as
follows:
5.12. CURRENT RATIO. Companies shall not permit the
Consolidated Current Ratio to be less than:
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(a) 1.25 to 1.00 from the date of the Third Amendment
until December 31, 1998; and
(b) 1.50 to 1.00 thereafter.
1.19 A new Section 5.13 shall be added to the Agreement as follows:
5.13. FUNDING. The Companies shall not use the proceeds
of the Revolving Credit Notes to fund any Non-Obligor
Subsidiary acquisitions or non-operational purposes or
obligations other than operating cash flow of such
Non-Obligor Subsidiary.
1.20. A new Section 5.14 shall be added to the Agreement as follows:
5.14. ROYALTY AGREEMENTS. The form of royalty agreement
in place between the Companies and each of the Subsidiaries
is attached hereto as Exhibit 5.14. The Companies shall not
materially change, amend or modify this royalty agreement or
any term thereof without the prior written consent of Bank
One. After the occurrence of an Event of Default hereunder,
the Companies shall enforce each royalty agreement to
require payment to be made by each Subsidiary, as long as
the Subsidiary has positive net worth, calculated without
intercompany liabilities.
1.21. In Section 8, the definition of "Current Assets," "Current
Liabilities", "Debt Service Coverage Ratio", "Guarantors" and "Revolving Credit
Note" shall be amended and restated in its entirety as follows:
"Current Assets" and "Current Liabilities" shall mean the
current assets and current liabilities of the companies, all
determined in accordance with generally accepted accounting
principles applied on a consistent basis; PROVIDED, HOWEVER,
that "Current Assets" shall exclude all prepaid items and
"Current Liabilities" shall include all deferred revenue and
the current portion of deferred taxes.
"Debt Service Coverage Ratio" shall mean the ratio of (a)
net income after tax plus depreciation and amortization plus
interest expense minus capitalized software minus capital
expenditures to (b) current maturities of long term debt
plus interest expense, all determined in accordance with
generally accepted accounting principles applied on a
consistent basis. The current maturities of long term debt
under the Revolving Credit Note shall be determined on a pro
forma basis assuming that the then-current principal balance
of the Revolving Credit Note would be amortized, on a
straight line basis, over 60 months.
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"Guarantors" shall mean Xxxxxxxx Corporation, Symix Computer
Systems (Canada), Inc., Symix (UK) Ltd., Symix Computer
Systems (UK) Ltd., Symix Systems B.V. and Symix Computer
Systems (Mexico) S. De X.X. De C.V.
"Revolving Credit Notes" is defined in Section 1.1.2.
1.22. The following definitions shall be added to Section 8:
"Account" means and includes all accounts (whether or not
earned by performance), contract rights, chattel paper,
instruments, documents, general intangibles (including,
without limitation, tax refunds and tax refund claims) and
all other forms of obligations owing to either of the
Companies, whether secured or unsecured, whether now
existing or hereafter created, by account debtors whose
principal place of business is the United States of America,
and all guaranties and other security therefor, all
merchandise returned to or repossessed by either of the
Companies, and all rights of stoppage in transit and all
other rights and remedies of an unpaid vendor, lienor or
secured party.
"Borrowers" means the Companies, Symix Systems Ontario,
Inc., an Ontario corporation and Visual Applications
Software, Inc., an Ontario corporation.
"Borrowing Base" means the Net Value of Eligible Accounts.
"Borrowing Base Certificate" means a certificate, in the
form required by Bank One, signed by a duly authorized
officer of the Companies, that computes the Borrowing Base,
together with any memo of returns and credits, remittance
report, schedule of Accounts and such other supporting
documents and materials which Bank One, in its sole
discretion, may require to be delivered with such
certificate.
"Eligible Account" means each Account of SCSI which, at the
time of determination, meets all the following
qualifications: (a) SCSI has lawful and absolute title to
such Account, and such Account is not subject to any lien
charge or encumbrance ("Lien") whatsoever; (b) SCSI has the
full unqualified right to xxxxx x Xxxx in such Account to
Bank One; (c) the Account is evidenced by an invoice issued
to the proper account debtor (a "Customer") and is not
evidenced by any instrument or chattel paper; (d) the
Account arose from the sale of goods or services by SCSI in
the ordinary course of business, which goods or services
have been shipped or delivered to the Customer under such
Account; and such sale was an absolute sale and not on
consignment, approval or a sale-and-return basis;
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(e) no notice of the bankruptcy, receivership,
reorganization or insolvency of the Customer has been
received by SCSI; (f) the Account is a valid, legally
enforceable obligation of the Customer, and is not subject
to any dispute, offset, counterclaim, or other defense on
the part of such Customer; (g) the terms of the Account
require payment no more than 120 days from the date an
invoice is issued and the Account is less than 121 days past
due; (h) the Customer on the Account is not (1) the United
States of America or any foreign government, or any
department, agency or instrumentality thereof (unless SCSI
and Bank One shall have fully complied with the Assignment
of Claims Act of 1940, as amended, or any other applicable
law governing government Accounts, with respect to such
Account), (2) SCSI, or any affiliated company or Subsidiary,
(3) located outside the United States, or (4) indebted to
SCSI in an amount, which when added to all other amounts
then owed to SCSI by any affiliate of such Customer, exceeds
50% of the amount of all then outstanding Eligible Accounts;
(i) SCSI is not indebted to the Customer on the Account (or
any affiliate of such Customer) for any goods provided or
services rendered to SCSI; (j) the Account is not owing by
any Customer with 50% or more of the value of its
outstanding Accounts not qualifying as Eligible Accounts;
(k) the Account is an Account representing all or part of
the sales price of merchandise, insurance and service within
the meaning of Section 3(c)(5) of the Investment Company Act
of 1940, as amended; (l) a purchase of the Account would
constitute a "current transaction" within the meaning of
Section 3(a)(3) of the Securities Act of 1933, as amended;
and (m) the Account is denominated and payable only in
United States dollars in the United States.
"Net Value of Eligible Accounts" means (a) 85% of the lower
of the book value or collectible value of Eligible Accounts,
as reflected in the Borrower's books in accordance with
GAAP, net of all credits, discounts and allowances
(including all unissued credits in the form of a competitive
allowance or otherwise).
"Non-Obligor Subsidiary" means Symix Asia Company Ltd.,
Symix Computer Systems (Hong Kong) Ltd., Symix Computer
Systems (Singapore) Pte. Ltd., Symix Computer Systems
(Australia) Pty. Ltd., Symix Computer Systems (Malaysia) Sdn
Bhd., Symix New Zealand, Ltd., Symix Italia, S.p.A. and any
other Subsidiary created after January 31, 1998 that does
not have a tangible net worth in excess of $250,000.
39
SECTION 2. GOVERNING LAW. This Third Amendment shall be governed by
and construed in accordance with the laws of the State of Ohio.
SECTION 3. COSTS AND EXPENSES. All fees, costs or expenses, including
reasonable fees and expenses of outside legal counsel, incurred by Bank One
in connection with either the preparation, administration, amendment,
modification or enforcement of this Third Amendment shall be paid by the
Companies on request, PROVIDED, HOWEVER, that Bank One and its outside legal
counsel will provide the Companies good faith estimates of the cost of legal
services in connection with the amendment or modification of this Third
Amendment.
SECTION 4. COUNTERPARTS. This Third Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the
same agreement.
SECTION 5. CONFESSION OF JUDGMENT. Each Company hereby authorizes any
attorney at law to appear for the Company, in an action on this Third
Amendment, at any time after the same becomes due, as herein provided, in any
court of record in or of the State of Ohio, or elsewhere, to waive the
issuing and service of process against the Company and to confess judgment in
favor of the holder of this Third Amendment or the party entitled to the
benefits of this Third Amendment against the Company for the amount that may
be due, with interest at the rate herein mentioned and costs of suit, and to
waive and release all errors in said proceedings and judgment, and all
petitions in error, and right of appeal from the judgment rendered. No
judgment against one Company shall preclude Bank One from taking a confessed
judgment against the other Company.
SECTION 6. CONDITIONS PRECEDENT. Simultaneously with the execution
hereof, Bank One shall receive all of the following, each dated the date
hereof, in form and substance satisfactory to Bank One:
6.1. Certified copies of (a) the resolutions of the board of
directors of each Company evidencing authorization of the execution,
delivery, and performance of this Third Amendment, the Revolving Credit Note,
the other documents set forth in this Section 6 and such other instruments
and agreements contemplated thereby; and (b) all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect
to this Third Amendment or the transactions contemplated hereby.
6.2. The $13,000,000 Revolving Credit Note, and the $2,000,000
Revolving Credit Note, each dated as of the date hereof, issued by the
Companies and the Borrowers, respectively.
6.3. Consents of each of the Guarantors accompanied by (a)
certified copies of the resolutions of each Guarantor's board of directors
evidencing the authorization of the execution, delivery and performance of
such consent and (b) an incumbency certificate of such Guarantor.
40
6.4. The Pledge Agreement between the Companies and Bank One,
dated as of the date hereof.
6.5. The Assignment of Intercompany Note, dated as of the date
hereof.
6.6. A closing fee in the amount of $37,500.
6.7. Such other documents as Bank One may, in its reasonable
discretion, so require.
SECTION 7. BANK ONE CONSENT. Bank One hereby consents to the Companies
entering into the Agreement with Mitsui dated June 5, 1998.
SECTION 8. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES; NO
DEFAULTS. The Companies hereby expressly acknowledge and confirm that the
representations and warranties of the Company set forth in Section 3 of the
Agreement are true and accurate on this date with the same effect as if made
on and as of this date; that no financial condition or circumstance exists
which would inevitably result in the occurrence of an Event of Default under
Section 6 of the Agreement; and that no event has occurred or no condition
exists which constitutes, or with the running of time or the giving of notice
would constitute an Event of Default under Section 6 of the Agreement.
SECTION 9. REAFFIRMATION OF DOCUMENTS. Except as herein expressly
modified, the parties hereto ratify and confirm all of the terms, conditions,
warranties and covenants of the Agreement, and all security agreements,
pledge agreements, mortgage deeds, assignments, subordination agreements, or
other instruments or documents executed in connection with the Agreement,
including provisions for the payment of the Notes pursuant to the terms of
the Agreement. This Third Amendment does not constitute the extinguishment of
any obligation or indebtedness previously incurred, nor does it in any manner
affect or impair any security interest granted to Bank One, all of such
security interests to be continued in full force and effect until the
indebtedness described herein is fully satisfied.
The Companies have executed this Third Amendment as of the date first
above written.
SYMIX SYSTEMS, INC. SYMIX COMPUTER SYSTEMS, INC.
By /s/ Xxxxxxxx X. XxXxxx By: /s/ Xxxxxxxx X. XxXxxx
---------------------------------- ------------------------------------
Name: Xxxxxxxx X. XxXxxx Name: Xxxxxxxx X. XxXxxx
Its: Vice President, Chief Financial Its: Vice President, Chief
Officer and Secretary Financial Officer and Secretary
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WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE
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AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN
AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
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BANK ONE, NA
By: /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Its: Vice President
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Exhibit A-4
AMENDED AND RESTATED REVOLVING CREDIT NOTE
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$13,000,000 Columbus, Ohio
June 1, 1998
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On or before March 31, 2001, for value received, the undersigned, SYMIX
SYSTEMS, INC., an Ohio corporation and SYMIX COMPUTER SYSTEMS, INC., an Ohio
corporation (individually, a "Company" and, collectively, the "Companies")
hereby jointly and severally promise to pay to the order of Bank One, NA, a
national association (the "Bank") or its assigns, as further provided herein,
the principal amount of Thirteen Million Dollars ($13,000,000) or, if such
principal is less, the aggregate unpaid principal amount of all loans made by
the Bank to the Companies pursuant to the Credit Commitment under the
Agreement referred to in Section 1 hereof, together with interest on the
unpaid principal balance from time to time outstanding hereunder until paid
in full at the rates determined in accordance with the provisions of Section
1.1.4 of the Agreement, payable as set forth in the Agreement. Both
principal and interest are payable in federal funds or other immediately
available money of the United States of America at the Main Office of the
Bank, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000-0000. This Amended and
Restated Revolving Credit Note amends and restates in its entirety the
Amended and Restated Revolving Credit Note issued to the Bank by the
Companies dated March 4, 1998, the Amended and Restated Revolving Credit Note
issued to the Bank by the Companies dated August 13, 1997 and the Revolving
Credit Note issued to the Bank by the Companies dated May 20, 1996.
SECTION 1. LOAN AGREEMENT. This Amended and Restated Revolving Credit
Note is the $13,000,000 Revolving Credit Note referred to in the Loan
Agreement dated as of May 20, 1996 as amended by First Amendment dated August
13, 1997, Second Amendment dated March 4, 1998 and Third Amendment dated as
of the date hereof (the "Agreement") between the Companies and the Bank, as
the same may be amended, modified or supplemented from time to time, which
Agreement, as amended, is incorporated by reference herein. All capitalized
terms used herein shall have the same meanings as are assigned to such terms
in the Agreement. This Amended and Restated Revolving Credit Note is entitled
to the benefits of and is subject to the terms, conditions and provisions of
the Agreement. The Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated
events, and also for repayments and reborrowings on account of the principal
hereof prior to maturity upon the terms, conditions and provisions specified.
SECTION 2. WAIVER OF PRESENTMENT. The Companies hereby waive
presentment, demand, notice, protest, notice of protest, notice of dishonor
and all other demands and notices in connection with the delivery,
acceptance, performance and enforcement of this Note.
SECTION 3. CONFESSION OF JUDGMENT. The Companies hereby authorize any
attorney at law to appear for the Companies, in an action on this Note, at
any time after the same becomes
43
due, as herein provided, in any court of record in or of the State of Ohio,
or elsewhere, to waive the issuing and service of process against the
Companies and to confess judgment in favor of the holder of this Note against
the Companies for the amount that may be due, with interest at the rate
herein mentioned and costs of suit, and to waive and release all errors in
said proceedings and judgment, and all petitions in error, and right of
appeal from the judgment rendered. No judgment against one Company shall
impair the Bank's right to receive a confession of judgment against the
remaining Company.
SECTION 4. WAIVER OF JURY TRIAL. THE BANK AND THE COMPANIES HEREBY
VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE BANK AND THE COMPANIES ARISING OUT OF, IN CONNECTION
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE
COMPANIES AND THE BANK IN CONNECTION WITH ANY LOAN DOCUMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR THE TRANSACTIONS RELATED
HERETO OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK TO
ENTER INTO THE FINANCING TRANSACTIONS WITH COMPANIES. IT SHALL NOT IN ANY
WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY THE BANK'S ABILITY TO PURSUE ITS
REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION OF JUDGMENT OR
COGNOVIT PROVISION CONTAINED HEREIN OR IN ANY OTHER DOCUMENT RELATED HERETO.
SECTION 5. NATURE OF OBLIGATIONS. The obligations of the Companies
hereunder (the "Obligations") are joint and several and a separate action or
actions may be brought and prosecuted against either Company regardless of
whether any action is brought against the other Company or whether the other
Company is joined in any such action(s). The Companies may be sued together
or either of them may be sued separately without first, contemporaneously or
subsequently, suing the other. The Bank may compromise with either of the
Companies for less than all of the amounts owing hereunder and under the Loan
Documents and release either of the Companies from all further liability to
the Bank for the amounts owing hereunder and under the Agreement all without
impairing the rights of the Bank to demand and collect the balance of the
amounts owing hereunder and under the Agreement from the other Company not so
sued or released. There shall be no duty or obligation of the Bank to
exhaust any remedy in law or in equity against either Company before bringing
suit or instituting proceedings of any kind against the other Company. The
Companies and all sureties, endorsers and guarantors of this Amended and
Restated Revolving Credit Note (a) waive demand, presentment for payment,
notice of nonpayment, protest, notice of protest and all other notices,
filing of suit and diligence in collecting this Amended and Restated
Revolving Credit Note, (b) agree to any release of any party primarily or
secondarily liable thereon, and (c) consent to any extension or postponement
of time of payment of this Amended and Restated Revolving Credit Note and to
any other indulgence with respect hereto without notice thereof to any of
them.
The Obligations hereunder are irrevocable and may only be discharged by
the full and timely payment of the amounts owing by the Companies hereunder
and thereunder and will not be discharged, released, altered or modified by
any other action or omission of any Person, on any
44
one or more occasions, including, without limitation (a) the amendment,
modification or waiver of the Agreement or any performance due hereunder or
thereunder, (b) the impairment, grant, exchange, release, surrender or
disposal of any collateral, (c) the release or discharge of a Company's
Obligations, (d) the existence or assertion by either Company of any personal
defense to its obligations including, without limitation, bankruptcy, (e) the
exercise, pursuit or waiver of any right or remedy that the Bank may have at
any time, (f) the Bank's failure to give notice to either Company of the
occurrence of any default in the Company's performance hereunder or under the
Agreement, (g) the taking or omission to take any action hereunder or under
the Agreement, (h) the Bank's release or discharge of any guaranty or
accommodation with respect to the Obligations, (i) the impossibility or
illegality of performance by the Companies or (j) any change in the corporate
organization of the Bank.
If either Company at any time shall pay any sums on account of any
Obligation or take any other action in performance of any Obligation, such
Company shall be subrogated to the rights, powers, privileges and remedies of
the Bank in respect of such Obligation; PROVIDED that all such rights of
subrogation and all claims and indebtedness arising therefrom shall be, and
the Company hereby agrees that the same are, and shall be at all times, in
all respects subordinate and junior to the Banks claims for all the
Obligations, and PROVIDED, FURTHER, that the Company hereby agrees that it
shall not seek to exercise any such rights of subrogation, reimbursement,
exoneration, or indemnity whatsoever or any rights of recourse to any
security for any of the Obligations unless or until all the Obligations shall
have been indefeasibly paid in full. The waivers, representations,
warranties, covenants and agreements contained in this paragraph are for the
benefit of and may be enforced by the Bank and such Company and their
respective successors and assigns, including without limitation any trustee
in bankruptcy of such Company.
45
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WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER
FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
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SYMIX SYSTEMS, INC. SYMIX COMPUTER SYSTEMS, INC.
By /s/ Xxxxxxxx X. XxXxxx By: /s/ Xxxxxxxx X. XxXxxx
------------------------------------- ----------------------------------
Name: Xxxxxxxx X. XxXxxx Name: Xxxxxxxx X. XxXxxx
Its: Vice President, Chief Financial Its: Vice President, Chief
Officer and Secretary Financial Officer and Secretary
46
EXHIBIT A-5
REVOLVING CREDIT NOTE
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$2,000,000 Columbus, Ohio
June 1, 1998
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On or before March 31, 2001, for value received, the undersigned, SYMIX
SYSTEMS, INC., an Ohio corporation ("SSI"), SYMIX COMPUTER SYSTEMS, INC., an
Ohio corporation ("SCSI"), SYMIX SYSTEMS ONTARIO, INC., an Ontario
corporation ("SSO") and VISUAL APPLICATIONS SOFTWARE, INC., an Ontario
corporation ("VAS") (individually, a "Borrower" and, collectively, the
"Borrowers") hereby promise to pay to the order of Bank One, NA, a national
association (the "Bank") or its assigns, as further provided herein, the
principal amount of Two Million Dollars ($2,000,000) or, if such principal is
less, the aggregate unpaid principal amount of all loans made by the Bank to
the Borrowers pursuant to the Credit Commitment less any amounts loaned to
SSI and SCSI (the "Companies") under the $13,000,000 Amended and Restated
Revolving Credit Note dated as of the date hereof under the Agreement
referred to in Section 1 hereof, together with interest on the unpaid
principal balance from time to time outstanding hereunder until paid in full
at the rates determined in accordance with the provisions of Section 1.1.4 of
the Agreement, payable as set forth in the Agreement. Both principal and
interest are payable in federal funds or other immediately available money of
the United States of America at the Main Office of the Bank, 000 Xxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxx 00000-0000. Proceeds from borrowings under this Note
are to be used solely to fund the operations of SS0 and VAS, whether borrowed
by VAS, SSO or the Companies.
SECTION 1. LOAN AGREEMENT. This Revolving Credit Note is the
$2,000,000 Revolving Credit Note referred to in the Loan Agreement dated as
of May 20, 1996 as amended by First Amendment dated August 13, 1997, Second
Amendment dated March 4, 1998 and Third Amendment dated as of the date hereof
(the "Agreement") between the Companies and the Bank, as the same may be
amended, modified or supplemented from time to time, which Agreement, as
amended, is incorporated by reference herein. All capitalized terms used
herein shall have the same meanings as are assigned to such terms in the
Agreement. This Revolving Credit Note is entitled to the benefits of and is
subject to the terms, conditions and provisions of the Agreement. The
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events, and also for
repayments and reborrowings on account of the principal hereof prior to
maturity upon the terms, conditions and provisions specified.
SECTION 2. WAIVER OF PRESENTMENT. The Borrowers hereby waive
presentment, demand, notice, protest, notice of protest, notice of dishonor
and all other demands and notices in connection with the delivery,
acceptance, performance and enforcement of this Note.
SECTION 3. CONFESSION OF JUDGMENT. The Borrowers hereby authorize any
attorney at law to appear for the Borrowers, in an action on this Note, at
any time after the same becomes due, as herein provided, in any court of
record in or of the State of Ohio, or elsewhere, to waive
47
the issuing and service of process against the Borrowers and to confess
judgment in favor of the holder of this Note against the Borrowers for the
amount that may be due, with interest at the rate herein mentioned and costs
of suit, and to waive and release all errors in said proceedings and
judgment, and all petitions in error, and right of appeal from the judgment
rendered. No judgment against one Borrower shall impair the Bank's right to
receive a confession of judgment against any of the remaining Borrowers.
SECTION 4. WAIVER OF JURY TRIAL. THE BANK AND THE COMPANIES HEREBY
VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE BANK AND THE COMPANIES ARISING OUT OF, IN CONNECTION
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE
COMPANIES AND THE BANK IN CONNECTION WITH ANY LOAN DOCUMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR THE TRANSACTIONS RELATED
HERETO OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK TO
ENTER INTO THE FINANCING TRANSACTIONS WITH COMPANIES. IT SHALL NOT IN ANY
WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY THE BANK'S ABILITY TO PURSUE ITS
REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION OF JUDGMENT OR
COGNOVIT PROVISION CONTAINED HEREIN OR IN ANY OTHER DOCUMENT RELATED HERETO.
SECTION 5. NATURE OF OBLIGATIONS. The obligations of the Borrowers
hereunder (the "Obligations") are joint and several and a separate action or
actions may be brought and prosecuted against any Borrower regardless of
whether any action is brought against any other Borrower or whether the other
Borrower is joined in any such action(s). The Borrowers may be sued together
or either of them may be sued separately without first, contemporaneously or
subsequently, suing the other. The Bank may compromise with any of the
Borrowers for less than all of the amounts owing hereunder and under the Loan
Documents and release any of the Borrowers from all further liability to the
Bank for the amounts owing hereunder and under the Agreement all without
impairing the rights of the Bank to demand and collect the balance of the
amounts owing hereunder and under the Agreement from any other Borrower not
so sued or released. There shall be no duty or obligation of the Bank to
exhaust any remedy in law or in equity against any Borrower before bringing
suit or instituting proceedings of any kind against any other Borrower. The
Borrowers and all sureties, endorsers and guarantors of this Revolving Credit
Note (a) waive demand, presentment for payment, notice of nonpayment,
protest, notice of protest and all other notices, filing of suit and
diligence in collecting this Revolving Credit Note, (b) agree to any release
of any party primarily or secondarily liable thereon, and (c) consent to any
extension or postponement of time of payment of this Revolving Credit Note
and to any other indulgence with respect hereto without notice thereof to any
of them.
The Obligations hereunder are irrevocable and may only be discharged by
the full and timely payment of the amounts owing by the Borrowers hereunder
and thereunder and will not be discharged, released, altered or modified by
any other action or omission of any Person, on any one or more occasions,
including, without limitation (a) the amendment, modification or waiver of
the Agreement or any performance due hereunder or thereunder, (b) the
impairment, grant,
48
exchange, release, surrender or disposal of any collateral, (c) the release
or discharge of a Borrower's Obligations, (d) the existence or assertion by
any Borrower of any personal defense to its obligations including, without
limitation, bankruptcy, (e) the exercise, pursuit or waiver of any right or
remedy that the Bank may have at any time, (f) the Bank's failure to give
notice to any Borrower of the occurrence of any default in any Borrower's
performance hereunder or under the Agreement, (g) the taking or omission to
take any action hereunder or under the Agreement, (h) the Bank's release or
discharge of any guaranty or accommodation with respect to the Obligations,
(i) the impossibility or illegality of performance by the Borrowers or (j)
any change in the corporate organization of the Bank.
If any Borrower at any time shall pay any sums on account of any
Obligation or take any other action in performance of any Obligation, such
Borrower shall be subrogated to the rights, powers, privileges and remedies
of the Bank in respect of such Obligation; PROVIDED that all such rights of
subrogation and all claims and indebtedness arising therefrom shall be, and
the Borrower hereby agrees that the same are, and shall be at all times, in
all respects subordinate and junior to the Banks claims for all the
Obligations, and PROVIDED, FURTHER, that the Borrower hereby agrees that it
shall not seek to exercise any such rights of subrogation, reimbursement,
exoneration, or indemnity whatsoever or any rights of recourse to any
security for any of the Obligations unless or until all the Obligations shall
have been indefeasibly paid in full. The waivers, representations,
warranties, covenants and agreements contained in this paragraph are for the
benefit of and may be enforced by the Bank and such Borrower and their
respective successors and assigns, including without limitation any trustee
in bankruptcy of such Borrower.
49
The undersigned executed this Revolving Credit Note as of the day and
year first set forth above.
SYMIX SYSTEMS ONTARIO, INC. VISUAL APPLICATIONS SOFTWARE, INC.
By By:
------------------------------- ------------------------------
Name: Xxxxxxxx X. XxXxxx Name: Xxxxxxxx X. XxXxxx
Its: Vice President, Chief Financial Its: Vice President, Chief Financial
Officer and Secretary Officer and Secretary
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WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER
FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
-------------------------------------------------------------------------------
SYMIX SYSTEMS, INC. SYMIX COMPUTER SYSTEMS, INC.
By By:
------------------------------- ------------------------------
Name: Xxxxxxxx X. XxXxxx Name: Xxxxxxxx X. XxXxxx
Its: Vice President, Chief Financial Its: Vice President, Chief Financial
Officer and Secretary Officer and Secretary
50
Exhibit 4.3
[Compliance Certificate
TO FOLLOW]
51
Exhibit 5.14
[Form of Royalty Agreement
TO FOLLOW]
52
