EXHIBIT 10.27
LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement") is made and entered into as of the
22nd day of December, 1996, by and between TSW INTERNATIONAL, INC., a Georgia
corporation ("Lender"), and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ("Borrower").
W I T N E S S E T H:
WHEREAS, Borrower desires to borrow from Lender, and Lender has agreed to
loan to Borrower, the sum of ONE HUNDRED THOUSAND AND NO/100 ENGLISH POUNDS
((Pounds)100,000.00) upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premise, the mutual
promises, covenants and agreements contained herein, and good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
I. GENERAL TERMS
SECTION 1.1 LOAN. Subject to the terms and conditions contained in this
Agreement, Lender agrees to loan to Borrower One Hundred Thousand and No/100
English Pounds ((Pounds)100,00.00) (the "Loan"). The Loan shall be evidenced by
a Promissory Note from Borrower in the form of EXHIBIT "A" attached hereto and
incorporated herein by reference (the "Note").
SECTION 1.2 REPAYMENT OF PRINCIPAL; PREPAYMENTS.
(a) REPAYMENT OF PRINCIPAL. The principal amount of the Loan shall, if not
voluntarily or mandatorily prepaid sooner pursuant to the terms of subparagraphs
(b) or (c) of this Section 1.2, be due and payable on April 30, 1999.
(b) VOLUNTARY PREPAYMENTS. Borrower may, at any time and from time to
time, without the consent of Lender and without paying and penalty or premium
therefor, prepay all or any portion of the outstanding principal of the Loan;
provided, however, that Borrower first pay and all accrued and unpaid
interest on the principal of the Loan.
(c) MANDATORY PREPAYMENTS.
(i) SALE OF SHARES. Notwithstanding anything herein to the contrary,
upon any sale or disposition of any of the "Option Shares" (as such term is
defined in Section 1.4 hereof), any proceeds from such sale or disposition, net
of any applicable United States,
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Georgia or United Kingdom taxes, shall be paid to Lender by Borrower first
towards the payment of all accrued and unpaid interest of the Loan as of that
time, and secondly, if all accrued and unpaid interest of the Loan as of that
time has been paid, towards the payment of the outstanding principal balance of
the Loan as of that time.
(ii) GRANT OF BONUS. Notwithstanding anything contained herein to the
contrary, upon any payment of a cash bonus or other similar form of cash
compensation by the Lender (or an affiliate of the Lender) to the Borrower, the
full amount of such cash bonus or other similar form of cash incentive
compensation, net of any applicable United States, Georgia or United Kingdom
taxes, shall be paid to Lender by Borrower first towards the payment of all
accrued and unpaid interest of the Loan as of that time, and secondly, if all
accrued and unpaid interest of the Loan as of that time has been paid, towards
the payment of the outstanding principal balance of the Loan as of that time.
(iii) CESSATION OF EMPLOYMENT. Notwithstanding anything contained
herein to the contrary, upon the cessation of Borrower's employment with the
Lender for any reason or for no reason, the outstanding principal balance of the
Loan and all accrued and unpaid interest thereon shall be due and payable within
ninety (90) days of the date of such cessation of employment.
SECTION 1.3 APPLICABLE INTEREST RATE; PAYMENT TERMS.
(a) INTEREST RATE. The outstanding principal balance of the Loan shall bear
interest from the date of advance of the Loan at the rate of six percent (6%)
per annum, expressed in simple interest terms and computed on a three hundred
sixty-five (365)-day year.
(b) PAYMENT DATES. Interest on the Loan shall be payable: (i) on April 30,
1997 and April 30, 1998 and (ii) at maturity of the Loan, whether by reason of
acceleration, payment, prepayment or otherwise (the "Maturity Date").
Notwithstanding the foregoing, if Lender (or an affiliate of the Lender) does
not pay Borrower a cash bonus or other similar form of cash incentive
compensation sufficient to pay accrued and unpaid interest, Borrower may defer
his unpaid interest on the Loan until the Maturity Date.
SECTION 1.4 SECURITY FOR THE LOAN. Borrower's obligations and indebtedness
to Lender under this Agreement and under the Note (collectively, the
"Obligations") shall be secured at all times by that certain Collateral
Assignment of even date herewith (the "Assignment") pursuant to which Borrower
collaterally assigned and granted to Lender a first priority security interest
in and to Borrower's rights (the "Option Shares") to purchase (i) eighty-eight
thousand eight hundred and eighty-eight (88,888) shares of Lender's One Cent
($.01) par value common stock ("Common Stock") under that certain Stock Option
Agreement dated as of August 17, 1994, by and between Borrower and Lender; (ii)
eighty-one thousand four hundred and twelve (81,412) shares of Common Stock
under that certain Stock Option Agreement, dated as of August 17, 1994, by and
between Borrower and Lender; (iii) sixty thousand six hundred and thirty-four
(60,634) shares of Common Stock under that certain
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Stock Option Agreement, dated as of May 4, 1995, by and between Borrower and
Lender; (iv) twenty-one thousand eight hundred and seventy-five (21,875) shares
of Common Stock under that certain Stock Option Agreement, dated as of November
4, 1996, by and between Borrower and Lender; and (v) seventy-six thousand
(76,000) shares of Common Stock under that certain Stock Option Agreement, dated
as of December 11, 1996, by and between Borrower and Lender.
SECTION 1.5 DISBURSEMENT OF LOAN; CLOSING. The closing shall be held on
the date hereof at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. At
closing, the Loan proceeds will be disbursed to Borrower. At closing, Borrower
shall execute and deliver to Lender the Note and the Assignment, together with
any other documents required or contemplated by the terms thereof, including,
without limitation, such documents as Lender may reasonably request in order to
create, perfect or maintain a security interest in the Option Shares.
II. REPRESENTATIONS AND WARRANTIES OF BORROWER
Borrower hereby represents and warrants to Lender (which representations
and warranties shall survive the delivery of the Note and the making of the
Loan) that:
SECTION 2.1 INDIVIDUAL CAPACITY. Borrower has the power and capacity to
execute, deliver and perform his obligations under this Agreement, the Note and
the Assignment.
SECTION 2.2 GOOD TITLE. Borrower is the lawful owner of full and
marketable title to the Option Shares, and the Option Shares are free and clear
from all liens, pledges, hypothecations, claims, security interests and
encumbrances of any kind whatsoever.
III. COVENANTS
SECTION 3.1 NOTICE OF DEFAULT. Borrower shall promptly notify Lender in
writing upon the occurrence of any Event of Default hereunder.
SECTION 3.2 FURTHER ASSURANCES. Borrower shall, from time to time
hereafter, execute and deliver such additional instruments, certificates and
documents, and take all such actions, as Lender shall reasonably request for the
purpose of implementing or effectuating the provisions of this Agreement, the
Note or the Assignment.
SECTION 3.3 SALE AND LIENS. Borrower shall not, directly or indirectly,
without the prior written consent of Lender; (i) exercise, transfer or assign
any of the Option Shares or (ii) create, assume or permit to exist any lien,
pledge, hypothecation, claim, security interest or encumbrance of any kind
whatsoever on the Option Shares.
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IV. DEFAULT
SECTION 4.1 EVENTS OF DEFAULT. The occurrence of any one or more of the
following shall constitute an "Event of Default" hereunder:
(a) Borrower's failure to make any payment of principal or interest when
due under the Note or hereunder;
(b) a breach by Borrower of any provision of this Agreement;
(c) an "Event of Default" under the Assignment;
(d) the entry of a decree or order for relief by a court having
jurisdiction over Borrower in an involuntary case under federal
bankruptcy law, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar
law, and the continuance of any such decree or order unstayed and in
effect for a period of sixty (60) consecutive days;
(e) the commencement by Borrower of a voluntary case under the federal
bankruptcy laws, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar
law; or
(f) Borrower becomes insolvent or admits in writing his inability to pay
his debts as they mature.
SECTION 4.2 REMEDIES ON DEFAULT. Upon the occurrence of an Event of
Default, Lender may: (i) terminate all obligations of Lender to Borrower; (ii)
declare the Note, including, without limitation, the outstanding principal
amount and all accrued interest thereon, to be immediately due and payable;
(iii) exercise any and all of the rights and remedies available to a secured
creditor under the Uniform Commercial Code or other applicable law; and (iv)
pursue any remedy available to it under this Agreement, the Note or the
Assignment, or available at law or in equity, all of which shall be cumulative.
Notwithstanding anything to the contrary herein or in the Note or the
Assignment, Lender hereby expressly agrees: (i) that Borrower shall be liable
for the outstanding principal balance of the Loan only to the full extent of
Borrower's interest in and to the Option Shares; and (ii) that Lender's remedies
following a default in the payment of principal of the Loan shall be limited to
the preservation, enforcement and foreclosure of Lender's security interest in
the Option Shares. With respect to a default in the payment of any accrued
interest on the principal of the Loan, Lender shall be entitled to seek and
obtain all available remedies and damages, whether existing in law, in equity,
hereunder or under the Note or the Assignment.
V. MISCELLANEOUS
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SECTION 5.1 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia.
SECTION 5.2 WAIVER. Neither the failure nor any delay on the part of any
party in exercising any right, power, or privilege granted pursuant to this
Agreement, the Note or the Assignment shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further
exercise or the exercise of any other right, power or privilege.
SECTION 5.3 CURRENCY. Payments made by Borrower to Lender pursuant to
Sections 1.2 and 1.3 hereof may be made in English Pounds or an equivalent
amount in United States Dollars.
SECTION 5.4 MODIFICATION. No modification, amendment or waiver of any
provision of this Agreement, the Note or the Assignment shall be effective
unless in writing an signed by the party against whom enforcement of such
modification, amendment or waiver is sought.
SECTION 5.5 NOTICES. All notices and other communications required or
authorized to be given under this Agreement shall be in writing and shall be
deemed to have been given or submitted: (i) when delivered by hand; or (ii)
three (3) days after the date deposited in the mail in registered or certified
form, first class, postage prepaid, addressed to a party at the following
address, or at such other address as each party may hereafter specify from time
to time by notice to the other party.
If to Borrower: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
c/o TSW International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Lender: TSW International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
SECTION 5.6 CAPTIONS. The captions of the Sections and other subdivisions
of this Agreement are inserted only as a matter of convenience for the parties
and shall have no effect on the meaning of the provisions hereof.
SECTION 5.7 ENTIRETY OF AGREEMENT. This Agreement comprises the entire
agreement between the parties hereto with respect to the subject matter hereof,
and there are no agreements, understandings, covenants, conditions or
undertakings, oral or written, express or implied, between the parties
concerning such subject matter that are not merged herein or superseded hereby,
other than the Note and the Assignment.
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SECTION 5.8 SEVERABILITY. If any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
included.
SECTION 5.9 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which shall
constitute the same agreement; and any signature page from any such counterpart
or any electronic facsimile thereof may be attached or appended to any other
counterpart to complete a fully executed counterpart of this Agreement, and any
telecopy or other facsimile transmission of any signature shall be deemed an
original and shall bind such party.
IN WITNESS WHEREOF, the parties hereto have executed, or caused their duly
authorized representatives to execute, this Agreement under seal as of the day
and year first above written.
"Borrower"
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (SEAL)
-------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
"Lender"
TSW INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Its: CFO
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[CORPORATE SEAL]
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EXHIBIT "A"
PROMISSORY NOTE
Pound 100,000.00 December 22, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
FOR VALUE RECEIVED, on or before April 30, 1999 (the "Maturity Date"), the
undersigned, ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ("Obligor"), promises to pay to the order of
TWS INTERNATIONAL, INC., a Georgia corporation (together with any subsequent
holder or transferee hereof, "Holder"), at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, or at such other place as Holder may from time to time designate in
writing, the principal sum of ONE HUNDRED THOUSAND AND NO/100 ENGLISH POUNDS
(Pound 100,000.OO), together with accrued interest on so much thereof as from
time to time shall be outstanding and unpaid, accruing on and after the date
hereof at the rate of six percent (6%) per annum, expressed in simple interest
terms and computed on a three hundred sixty-five (365) day year.
Interest payments hereunder shall be due and payable: (i) on April 30, 1997
and April 30, 1998 and (ii) at maturity of the Loan, whether by reason of
acceleration, payment, prepayment or otherwise, as provided in Section 1.3(b) of
that certain Loan Agreement of even date herewith by and between Obligor and
Holder (the "Loan Agreement"). Notwithstanding anything to the contrary herein
or in the Loan Agreement, the outstanding principal balance hereof and all
accrued interest thereon must be paid in full no later than the Maturity Date.
Obligor may be required to prepay the outstanding principal balance hereof,
together with all accrued interest thereon, in accordance with the terms and
conditions set forth in Section 1.2(c) of the Loan Agreement. Obligor shall
also be entitled, at any time and from time to time, without the consent of
Holder and without paying any penalty or premium therefor, to prepay all or any
portion of the outstanding principal balance hereof, together with all accrued
interest thereon.
As collateral security for its payment obligations hereunder and under the
Loan Agreement, Obligor has assigned his rights to purchase (i) eighty-eight
thousand eight hundred and eighty-eight (88,888) shares of Holder's One Cent
($.01) par value common stock ("Common Stock") under that certain Stock Option
Agreement dated as of August 17, 1994, by and between Obligor and Holder; (ii)
eighty-one thousand four hundred and twelve (81,412) shares of Common Stock
under that certain Stock Option Agreement, dated as of August 17, 1994, by and
between Obligor and Holder; (iii) sixty thousand six hundred and thirty-four
(60,634) shares of Common Stock under that certain Stock Option Agreement, dated
as of May 4, 1995, by and between Obligor and Holder; (iv) twenty-one thousand
eight hundred and seventy-five (21,875) shares of Common Stock under that
certain Stock Option Agreement, dated as of November 4, 1996 by and between
Obligor and Holder, and (v) seventy-six thousand (76,000) shares of Common Stock
under that certain Stock Option Agreement, dated as of December 11, 1996, by and
between Obligor and Holder, pursuant to that Collateral Assignment of even date
herewith by and between Obligor and Holder, which is incorporated herein by
reference (the "Assignment").
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Upon the occurrence of an "Event of Default" under the Loan Agreement or
the Assignment, (i) Holder shall have the right to declare the entire
outstanding principal balance hereof, and all accrued interest thereon to be
immediately due and payable: and (ii) Holder shall be entitled to seek and
obtain all available remedies and damages, whether existing in law, in equity,
hereunder or under the Loan Agreement or the Assignment.
No delay or omission on the part of Holder in exercising any right
hereunder shall operate as a waiver of such right or any other right under this
Note. Waiver of any right or remedy on any one occasion shall not be construed
as a bar to or waiver of any right or remedy on any future occasion.
This Note shall be governed by and construed in accordance with the laws of
the State of Georgia and shall be binding upon Obligor, and inure to the benefit
of Holder, and their permitted heirs, successors and assignees.
Time is of the essence in the payment and performance of this Note. Obligor
waives presentment, demand for payment, notice of dishoner, notice of protest,
protest, and all other notices or demands in connection with the delivery,
acceptance, performance or default of this Note.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal as
of the day and year first above written.
"Obligor"
(SEAL)
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▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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