1
EXHIBIT 10(x) TO SYMIX SYSTEMS, INC. 1999 FORM 10-K
FIFTH AMENDMENT TO LOAN AGREEMENT AMONG
SYMIX SYSTEMS, INC. AND SYMIX COMPUTER SYSTEMS, INC.
AND
BANK ONE, NA
THIS FIFTH AMENDMENT (Fifth Amendment") is dated as of June 10, 1999,
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, Third Amendment
dated as of June 1, 1998 and further amended by Fourth Amendment dated as of
December 24, 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 4.18 shall be amended and restated in its entirety
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 20 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.
1.2. Section 5.2 shall be amended and restated in its entirety
as follows:
5.2. FUNDING. 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 that shall not exceed an aggregate of Three Million
Dollars ($3,000,000), (4) unsecured indebtedness to trade
creditors arising out of the ordinary course of business and
(5) indebtedness incurred by Symix (U.K.) Ltd. pursuant to
an overdraft facility provided by Barclays Bank PLC in an
amount not to exceed (pound)100,000.
62
2
1.3. Section 5.3 shall be amended and restated in its entirety
as follows:
5.3. GUARANTY OF OTHERS' DEBTS. Companies and Subsidiaries
shall not assume, guarantee, endorse, contingently agree to
purchase or otherwise become liable upon the obligations of
any Person; PROVIDED, HOWEVER, that Companies may
guarantee, endorse or otherwise become liable upon the
obligations of Subsidiaries (1) to the extent Subsidiaries
have incurred debt permitted by Section 5.2(3) of this
Agreement, (2) to the extent Subsidiaries have entered into
leases of real property with annual payments not to exceed
$100,000 and (3) regarding indebtedness incurred by Symix
(U.K.) Ltd. pursuant to an overdraft facility provided by
Barclays Bank PLC in an amount not to exceed (pound)100,000
principal and (pound)20,000 interest and expenses.
1.4. The definition of "Guarantors" in Section 8 shall be
amended and restated in its entirety as follows:
"Guarantors" shall mean Xxxxxxxx Corporation, Distribution
Architects International, Inc. , 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.
SECTION 2 GOVERNING LAW. This Fifth 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 Fifth Amendment shall be paid by the Companies on
request.
SECTION 4. COUNTERPARTS. This Fifth 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 Fifth 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 Fifth Amendment or the party entitled to the benefits of this
Fifth 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 Fifth Amendment 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 Fifth Amendment or the transactions contemplated hereby.
63
3
6.2. Unconditional Continuing Guaranty of Dissolution
Architects International, Inc. accompanied by (a) certified copies of the
resolutions of such corporation's board of directors evidencing the
authorization of the execution, delivery and performance of such guaranty and
(b) an incumbency certificate of such corporation.
6.3. 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; PROVIDED.
HOWEVER, THAT the Companies and the Bank agree that the acquisition of
Distribution Architects International, Inc., a Texas corporation that merged
with and into Distribution Architects International, Inc., an Ohio corporation,
on or about June 9, 1999 (the "DAI Acquisition"), exceeds the limits set forth
in Section 5.4 of the Agreement. The Bank consented to the DAI Acquisition and
waived the violation of Section 5.4 related to the DAI Acquisition by letter
dated June 7, 1999.
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 Fifth 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.
64
4
The Companies have executed this Fifth Amendment as of the date first
above written.
SYMIX SYSTEMS, INC. SYMIX COMPUTER SYSTEMS, INC.
/s/ Xxxxxxxx X. XxXxxx /s/ Xxxxxxxx X. XxXxxx
--------------------------------------------- ---------------------------------------------
Name: Xxxxxxxx X. XxXxxx Name: Xxxxxxxx X. XxXxxx
Its: Vice President, Chief Financial Officer Its: Vice President, Chief Financial
and Secretary Officer and Secretary
--------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------
BANK ONE, NA
/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Its: Vice President
65
