EXHIBIT 10
FOURTH AMENDMENT TO LOAN AGREEMENT AMONG
SYMIX SYSTEMS, INC. and SYMIX COMPUTER SYSTEMS, INC.
AND
BANK ONE, NA
THIS FOURTH AMENDMENT ("Fourth Amendment") is dated as of December
24, 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, Second Amendment dated as of March 4, 1998 and further
amended by Third Amendment dated as of June 1, 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. In Section 1.1.5, the words "daily average unused portion"
shall be deleted and the words "daily unused portion" shall be inserted in
their place.
1.2. In Section 8, the definition of "Debt Service Coverage
Ratio" shall amended and restated in its entirety as follows:
"Debt Service Coverage Ratio" shall mean the
ratio of (a) net income after tax plus
depreciation and amortization plus interest
expense plus $6,503,000 for the non-recurring
charge related to the acquisition and research
and development write off appearing in the
June 30, 1998 financial statements 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.
1.3. Section 4.20 shall be amended and restated in its entirety as
follows:
4.20. PLEDGE OF INTERCOMPANY NOTE. The Companies
shall cause all the Non-Obligor Subsidiaries (except
Symix Computer Systems (Malaysia) Sdn Bhd.) to
execute an intercompany promissory note that
evidences all borrowings that such 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.
1.4. Section 5.13 shall be amended and restated in its entirety as
follows:
5.13. FUNDING. The Companies shall not use the
proceeds of the Revolving Credit Notes to find
any Non-Obligor Subsidiary acquisitions or
non-operational purposes or obligations other than
operating cash flow of such Non-Obligor Subsidiary.
The Companies shall not (and shall not permit any
Subsidiary to) loan or otherwise advance funds to
Symix Computer Systems (Malaysia) Sdn Bhd. in an
amount to exceed $200,000 in the aggregate
outstanding at any time.
1.5. All references to Symix Italia S.p.A. shall be changed to
Symix Italia S.r.l.
SECTION 2. GOVERNING LAW. This Fourth 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 Fourth Amendment shall be paid by the
Companies on request.
SECTION 4. COUNTERPARTS. This Fourth 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 Fourth
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
Fourth Amendment or the party entitled to the benefits of this Fourth
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. The Assignment of Intercompany Note, dated as of June 1,
1998.
6.2. Such other documents as Bank One may, in its reasonable
discretion, so require.
SECTION 7. 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 8. 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 Fourth 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 Fourth 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 Financial
Officer and Secretary Officer and Secretary
WARNING - IN 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.
BANK ONE, NA
By:/s/Xxxxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Its: Vice President
