EXHIBIT 10.57
SECOND AMENDMENT TO
LOAN AND SECURITY AGREEMENT
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SECOND AMENDMENT dated as of January 28, 2000 (this "Amendment") to
the LOAN AND SECURITY AGREEMENT dated as of August 11, 1999, as amended by the
FIRST AMENDMENT dated as of December 23, 1999 (the "Loan Agreement") by and
among SYSTEM SOFTWARE ASSOCIATES, INC., a Delaware corporation (the "Borrower"),
SYSTEM SOFTWARE ASSOCIATES LIMITED, a corporation organized under the laws of
England and Wales, SSA-ACCLAIM LIMITED, a corporation organized under the laws
of England and Wales, SSA SOFTWRIGHT LIMITED, a corporation organized under the
laws of England and Wales, SSA CANADA CORPORATION, a corporation organized under
the laws of Canada (together with the Borrower, each an "Obligor" and
collectively the "Obligors", each of the financial institutions signatories
hereto (such financial institutions, together with their respective successors
and assigns, each a "Lender" and collectively, the "Lenders", and FOOTHILL
CAPITAL CORPORATION, a California corporation, as agent for the Lenders (in such
capacity, the "Agent").
WHEREAS, the Obligors have requested the Lender Group to amend certain
terms of the Loan Agreement, and the Lender Group is willing to amend the Loan
Agreement subject to the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and conditions hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Capitalized Terms. All capitalized terms used in this Amendment
(including, without limitation, in the recitals hereto) and not otherwise
defined shall have their respective meanings set forth in the Loan Agreement.
2. Term. Section 3.4 of the Loan Agreement is hereby amended by
deleting the reference to "June 30, 2000" set forth therein and inserting
"November 1, 2000" in lieu thereof.
3. EBITDA. Section 7.20(a) of the Loan Agreement is hereby amended
by deleting the reference to "$9,200,000" for the fiscal quarter ended 4/30/2000
and substituting in lieu thereof a reference to "$5,400,000".
4. Agreements and Consents. Anything contained in Sections 7.14
[Affiliates], 7.23 [Preferred Stock] and 7.27 [Amendment to Certain Documents]
of the Loan Agreement to the contrary notwithstanding, the Required Lenders
hereby consent to the
amendment to the Amended and Restated Securities Purchase Agreement between the
Borrower and H&Q SSA Investors, L.P. for the sole purpose of waiving compliance
with or deleting financial covenants and otherwise conforming such agreement to
reflect certain changes to the Loan Agreement contained in this Amendment.
5. Conditions. This Amendment shall become effective only upon
satisfaction in full of the following conditions precedent (the first date upon
which all such conditions have been satisfied being herein called the "Amendment
Effective Date"):
(a) Representations and Warranties; No Event of Default. The
representations and warranties contained herein, in Section 5 of the Loan
Agreement and in each other Loan Document and certificate or other writing
delivered to the Agent and the Lenders pursuant hereto on or prior to the
Amendment Effective Date shall be correct on and as of the Amendment Effective
Date as though made on and as of such date (except to the extent that such
representations and warranties expressly relate solely to an earlier date in
which case such representations and warranties shall be true and correct on and
as of such date); and no Default or Event of Default shall have occurred and be
continuing on the Amendment Effective Date or would result from this Amendment
becoming effective in accordance with its terms, unless any such Event of
Default has previously been waived in accordance with Section 15 of the Loan
Agreement.
(b) Delivery of Documents. The Agent shall have received on or
before the Amendment Effective Date the following, each in form and substance
satisfactory to the Agent and, unless indicated otherwise, dated the Amendment
Effective Date:
(i) counterparts of this Amendment, duly executed by the
Obligors and the Lenders, and of the reaffirmation and consent
attached hereto as Exhibit A-1, duly executed by an authorized officer
of each Guarantor; and
(ii) such other agreements, instruments, approvals, opinions
and other documents as the Agent may reasonably request.
(c) Proceedings. All proceedings in connection with the
transactions contemplated by this Amendment, and all documents incidental
thereto, shall be satisfactory to the Agent and its special counsel, and the
Agent and such special counsel shall have received all such information and such
counterpart originals or certified copies of documents, and such other
agreements, instruments, approvals, opinions and other documents, as the Agent
or such special counsel may reasonably request.
(d) Fees. (i) Borrower shall have paid to the Agent, for the
benefit of the Lenders with a Term Loan A Sub-Commitment, a fee of $125,000,
such fee to be paid-in-kind by being added to the principal balance of the Term
Loan A Amount.
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(ii) Borrower shall have paid to the Agent, for the benefit
of the Lenders with a Term Loan B Commitment, a fee of $175,000, such
fee to be paid-in-kind by being added to the principal balance of the
Term Loan B Amount.
6. Representations and Warranties. Each of the Obligors warrant as
follows:
(a) Except as previously disclosed in writing to the Agent: (i)
the representations and warranties herein, in the Loan Agreement and in each
other Loan Document and certificate or other writing delivered to the Lenders on
or prior to the Amendment Effective Date shall be correct and accurate on and as
of the Amendment Effective Date as though made on and as of such date; and (ii)
no Default or Event of Default shall have occurred and be continuing on the
Amendment Effective Date or would result from this Amendment becoming effective
in accordance with its terms.
(b) Each of the Obligors (i) is a corporation, duly organized,
validly existing and in good standing under the laws of its state of
organization, (ii) has all requisite power and authority to execute, deliver and
perform this Amendment, and to perform the Loan Agreement, as amended hereby,
and (iii) is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the properties owned or leased by it or
in which the transaction of its business makes such qualification necessary.
(c) The execution, delivery and performance by each Obligor of
this Amendment, and the performance by each such Obligor of the Loan Agreement,
as amended hereby, (i) have been duly authorized by all necessary action, (ii)
do not and will not contravene such Obligor's charter or by-laws, any applicable
law or any contractual restriction binding on or otherwise affecting it or any
of its properties, (iii) do not and will not result in or require the creation
of any lien or other encumbrance (other than pursuant to any Loan Documents)
upon or with respect to any of its properties, and (iv) do not and will not
result in any suspension, revocation, impairment, forfeiture or nonrenewal of
any permit, license, authorization or approval applicable to its operations or
any of its properties.
(d) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or agency or other
regulatory body is required in connection with the due execution, delivery and
performance by any Obligor of this Amendment, or for the performance of the Loan
Agreement, as amended hereby.
(e) This Amendment, the Loan Agreement, as amended hereby, and
each other Loan Document to which any Obligor is a party is a legal, valid and
binding obligation of such Obligor, enforceable against such Obligor in
accordance with its terms, except as such enforceability may be limited by or
subject to any bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally.
7. Release by Borrowers. (a) Definition of "Related Parties" and
"Claims". For purposes of this Section 7, "Related Parties" and "Claims" shall
be defined as follows:
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"Related Parties" means, with respect to a party released, such
party's parents, subsidiaries, affiliates, successors, predecessors,
assigns, officers, directors, employees, agents, representatives,
attorneys, accountants and shareholders, if any.
"Claims" means any and all claims, losses, debts, liabilities,
demands, obligations, promises, acts, omissions, agreements, costs and
expenses, damages, injuries, suits, actions and causes of action,
including without limitation any and all rights of setoff, recoupment
or counterclaim, of any kind or nature whatsoever, in law or in
equity, known or unknown, suspected or unsuspected, contingent or
fixed.
(b) Release by Obligors. Excluding any continuing obligations of the
Lenders and the Agent under the express terms and provisions of the Loan
Agreement, the Loan Documents and this Amendment, each Obligor hereby releases,
acquits, and forever discharges the Lenders and the Agent, and each of them, as
well as their respective Related Parties, of and from any and all Claims arising
out of, related to or in any way connected with any action or failure to act,
prior to execution of this Amendment, in response to or in connection with any
events or circumstances arising under or otherwise related to the Loan Agreement
and the Loan Documents or any Defaults or Events of Default occurring under the
Loan Agreement.
8. Continued Effectiveness of the Loan Agreement. (a) Except as
otherwise expressly provided herein, the Loan Agreement and the other Loan
Documents are, and shall continue to be, in full force and effect and are hereby
ratified and confirmed in all respects, except that on and after the Amendment
Effective Date (i) all references in the Loan Agreement to "this Agreement",
"hereto", "hereof", "hereunder" or words of like import referring to the Loan
Agreement shall mean the Loan Agreement as amended by this Amendment and (ii)
all references in the other Loan Documents to the "Loan Agreement", "thereto",
"thereof", "thereunder" or words of like import referring to the Loan Agreement
shall mean the Loan Agreement as amended by this Amendment.
(b) The Obligors hereby acknowledge and agree that this Amendment
constitutes a "Loan Document" under the Loan Agreement. Accordingly, it shall
be an Event of Default under the Loan Agreement if (i) any representation or
warranty made by the Obligors under or in connection with this Amendment shall
have been untrue, false or misleading in any material respect when made, or (ii)
the Obligors shall fail to perform or observe any term, covenant or agreement
contained in this Amendment.
9. Costs and Expenses. The Obligors shall pay all out-of-pocket
costs and expenses of the Lender Group (including, without limitation, the
reasonable fees and service charges of counsel to any member of the Lender
Group) in connection with this Amendment.
10. Miscellaneous. (a) This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement.
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(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) This amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
11. THE OBLIGORS, LENDERS AND THE AGENT EACH HEREBY IRREVOCABLY WAIVE
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AMENDMENT OR THE ACTIONS OF THE LENDER GROUP IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT HEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
SYSTEM SOFTWARE ASSOCIATES, INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SYSTEM SOFTWARE ASSOCIATES LIMITED, a corporation
organized under the laws of England and Wales
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SSA-ACCLAIM LIMITED, a corporation organized under the
laws of England and Wales
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SSA SOFTWRIGHT LIMITED, a corporation organized under
the laws of England and Wales
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SSA CANADA CORPORATION, a corporation organized under
the laws of Canada
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
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FOOTHILL CAPITAL CORPORATION,
as Agent and as a Lender
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ABLECO FINANCE LLC,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
____________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title:
A2 FUNDING LP,
as a Lender
By: A2 Fund Management LLC,
its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
____________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title:
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Exhibit A-1
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REAFFIRMATION AND CONSENT
All capitalized terms used herein but not otherwise defined herein
shall have the meanings ascribed to them in that certain Second Amendment to
Loan and Security Agreement, dated as of January 28, 2000 (the "Amendment"). The
undersigned hereby (a) represents and warrants to the Lender Group that the
execution, delivery, and performance of this Reaffirmation and Consent are
within its corporate powers, have been duly authorized by all necessary
corporate action, and are not in contravention of any law, rule, or regulation,
or any order, judgment, decree, writ, injunction, or award of any arbitrator,
court, or governmental authority, or of the terms of its charter or by laws, or
of any contract or undertaking to which it is a party or by which any of its
properties may be bound or affected; (b) consents to the amendment of the Loan
Agreement by the Amendment; (c) acknowledges and reaffirms its obligations owing
to the Lender Group under the Guaranty and any other Loan Documents to which it
is a party; and (d) agrees that each of the Guaranty and any other Loan
Documents to which it is a party is and shall remain in full force and effect.
Although the undersigned has been informed of the matters set forth herein and
has acknowledged and agreed to same, it understands that the Lender Group has no
obligations to inform it of such matters in the future or to seek its
acknowledgement or agreement to future amendments, and nothing herein shall
create such a duty. Delivery of an executed counterpart of this Reaffirmation
and Consent by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Reaffirmation and Consent. Any party
delivering an executed counterpart of this Reaffirmation and Consent by
telefacsimile also shall deliver an original executed counterpart of this
Reaffirmation and Consent but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Reaffirmation and Consent. This Reaffirmation and Consent shall be governed
by the laws of the State of New York, as more fully set forth in Section 20 of
the Guaranty.
SYSTEM SOFTWARE ASSOCIATES LIMITED, a corporation
organized under the laws of England and Wales
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SSA-ACCLAIM LIMITED, a corporation organized under the
laws of England and Wales
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SSA SOFTWRIGHT LIMITED, a corporation organized under
the laws of England and Wales
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SSA CANADA CORPORATION, a corporation organized under
the laws of Canada
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SYSTEM SOFTWARE ASSOCIATES IBERICA
S.A., a corporation organized under the laws of Spain
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SSA SYSTEM SOFTWARE ASSOCIATES GmbH,
a corporation organized under the laws of Germany
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
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SSA ITALIA SPA, a corporation organized under
the laws of Italy
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SSA BENELUX B.V., a corporation organized under the
laws of the Netherlands
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SYSTEM SOFTWARE ASSOCIATES ASIA
PACIFIC PTE LTD, a corporation organized under
the laws of Singapore
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SSA PACIFIC PTY LIMITED, a corporation
organized under the laws of Australia
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SSA PACIFIC (NZ) LIMITED, a corporation
organized under the laws of New Zealand
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
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SYSTEM SOFTWARE ASSOCIATES DO
BRASIL LTDA., a corporation organized under the
laws of Brazil
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SYSTEM SOFTWARE ASSOCIATES INC. de
MEXICO, S.A. de C.V., a corporation organized
under the laws of Mexico
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SSA JAPAN CORPORATION, a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SSA PACIFIC RIM CORPORATION, a Delaware
corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
SYSTEM SOFTWARE ASSOCIATES (JAPAN) LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Finance and Controller
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