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EXHIBIT 10.26
[BANK OF AMERICA LOGO] Business Loan Agreement
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This Agreement dated as of June 17, 1996 is between Bank of America Arizona
(the "Bank") and JDA Software, Inc. (the "Borrower").
1. AMOUNT AND TERMS.
1.1 LINE OF CREDIT AMOUNT. During the availability period described below,
the Bank will provide a line of credit to the Borrower. The amount of the line
of credit (the "Commitment") is Five Million and No/100 Dollars
($5,000,000.00).
This is a revolving line of credit with a within line facility for letters of
credit. During the availability period, the Borrower may repay principal
amounts and reborrow them.
Each advance must be for at least Ten Thousand and No/100 Dollars ($10,000.00),
or for the amount of the remaining available line of credit, if less.
The Borrower agrees not to permit the outstanding principal balance of the line
of credit plus the outstanding amounts of any letters of credit, including
amounts drawn on letters of credit and not yet reimbursed, to exceed the
Commitment.
1.2 AVAILABILITY. The line of credit is available between the date of this
Agreement and July 1, 1998 (the "Expiration Date") unless the Borrower is in
default.
1.3 INTEREST RATE.
Unless the Borrower elects an optional interest rate as described below, the
interest rate is the Reference Rate.
The Reference Rate is the rate of interest publicly announced from time to time
by Bank of America National Trust and Savings Association ("BofA California")
in San Francisco, California, as its Reference Rate. The Reference Rate is set
by BofA California based on various factors, including its costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans. The Bank may price loans to its
customer at, above, or below the Reference Rate. Any change in the Reference
Rate will take effect at the opening of business on the day specified in the
public announcement of a change in the Reference Rate.
1.4 REPAYMENT TERMS.
(a) The Borrower will pay interest on July 1, 1996 and on the 1st day of
each month thereafter until payment in full of any principal outstanding under
this line of credit. (b) The Borrower will repay in full all principal and any
unpaid interest or other charges outstanding under this line of credit no later
than the Expiration Date. (c) The Borrower may prepay the loan in full or in
part at any time.
1.5 OPTIONAL INTEREST RATES. Instead of the interest rate based on the
Reference Rate, the Borrower may elect to have all or portions of the line of
credit (during the availability period) bear interest at the rate(s) described
below during an interest period agreed to by the Bank and the Borrower. Each
interest rate is a rate per year. Interest will be paid on the last day of
each interest period, the interest rate will revert to the rate based on the
Reference Rate, unless the Borrower has designated another fixed interest rate
for the portion.
1.6 FIXED RATE. The Borrower may elect to have all or portions of the
principal balance of the line of credit bear interest at the Fixed Rate,
subject to the following requirements.
(a) The "Fixed Rate" means the fixed interest rate the Bank and the
Borrower agree will apply to the portion during the applicable interest period.
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(b) The interest period during which the Fixed Rate will be in effect will
be no shorter than 30 days and no longer than 60 days. (c) Each Fixed Rate
portion will be for an amount not less than Five Hundred Thousand Dollars
($500,000).
(c) The Borrower may not elect a Fixed Rate with respect to any portion of
the principal balance of the line of credit which is scheduled to be repaid
before the last day of the applicable interest period. (e) Any portion of the
principal balance of the line of credit already bearing interest at the Fixed
Rate will not be converted to a different rate during its interest period.
(f) Each prepayment of a Fixed Rate portion, whether voluntary, by reason of
acceleration or otherwise, will be accompanied by the amount of accrued
interest on the amount prepaid, and a prepayment fee equal to the amount (if
any) by which: (i) the additional interest which would have been payable on
the amount prepaid had it not been paid until the last day of the interest
period, exceeds (ii) the interest which would have been recoverable by the
Bank by placing the amount prepaid on deposit in the certificate of deposit
market for a period starting on the date on which it was prepaid and ending on
the last day of the interest period for such portion.
1.7 LETTERS OF CREDIT. This line of credit may be used for financing
standby letters of credit with a maximum maturity of one year but not to extend
more than one year beyond the Expiration Date.
The amount of letters of credit outstanding at any one time (including amounts
drawn on letters of credit and not yet reimbursed) may not exceed One Million
and No/100 Dollars ($1,000,000.00).
The Borrower agrees: (a) any sum drawn under a letter of credit may, at the
option of the Bank, be added to the principal amount outstanding under this
Agreement. The amount will bear interest and be due as described elsewhere in
this Agreement. (b) if there is a default under this Agreement, to immediately
prepay and make the Bank whole for any outstanding letters of credit. (c) the
issuance of any letter of credit and any amendment to a letter of credit is
subject to the Bank's written approval and must be in form and content
satisfactory to the Bank and in favor of a beneficiary acceptable to the Bank.
(d) to sign the Bank's form Application and Agreement for Standby Letter of
Credit. (e) to pay any issuance and/or other fees that the Bank notifies the
Borrower will be charged for issuing and processing letters of credit for the
Borrower. (f) to allow the Bank to automatically charge its checking account
for applicable fees, discounts, and other charges.
2. FEES AND EXPENSES.
2.1 FEES.
(a) UNUSED COMMITMENT FEE. The Borrower agrees to pay a fee on any
difference between the Commitment and the amount of credit it actually
uses, determined by the weighted average loan balance maintained during
the specified period. The fee will be calculated at 0.125% per year.
This fee is due on September 30, 1996 and on the last day of each
quarter thereafter.
2.2 REIMBURSEMENT COST. (a) The Borrower agrees to reimburse the Bank for
any expenses it incurs in the preparation of this Agreement and any agreement
or instrument required by this Agreement. Expenses include, but are not
limited to, reasonable attorneys' fees, including any allocated costs of the
Bank's in-house counsel. (b) The Borrower agrees to reimburse the Bank for the
cost of periodic audits and appraisals of the real or personal property
collateral securing this Agreement, at such intervals as the Bank may
reasonably require. The audits and appraisals may be performed by employees of
the Bank or by independent appraisers.
3. COLLATERAL
3.1 PERSONAL PROPERTY. The Borrower's obligations to the Bank under this
Agreement will be secured by personal property the borrower now owns or will
own in the future as listed below. The collateral is further defined in
security agreement(s) executed by the Borrower. In addition, all personal
property collateral securing this Agreement shall also secure all other present
and future obligations of the Borrower to the Bank (excluding any consumer
credit covered by the federal Truth in Lending law, unless the Borrower has
otherwise agreed in writing). All personal property collateral securing any
other present or future obligations of the Borrower to the Bank shall also
secure this Agreement.
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(a) Machinery and equipment.
(b) Receivables.
(c) Patents, trademarks and other general intangibles.
4. DISBURSEMENTS, PAYMENTS AND COSTS
4.1 TELEPHONE AND TELEFAX AUTHORIZATION. (a) The Bank may honor telephone
or telefax instructions for advances or repayments or for the designation of
optional interest rates or the issuance of letters of credit given by any one
of the individual signer(s) of this Agreement or a person or persons authorized
in writing by any one of the signer(s) of this Agreement. (b) Advances will be
deposited in and repayments will be withdrawn from the Borrower's account
number 054-810607, or such other of the Borrower's accounts with the Bank as
designated in writing by the Borrower. (c) The Borrower indemnifies and excuses
the Bank (including its officers, employees, and agents) from all liability,
loss, and costs in connection with any act resulting from telephone
instructions it reasonably believes are made by any individual authorized by
the Borrower to give such instructions. This indemnity and excuse will survive
this Agreement's termination.
4.2 DIRECT DEBIT (PRE-BILLING). The Borrower agrees that the Bank will
debit the Borrower's account number 054-810607, or such other of the Borrower's
account with the Bank as designated in writing by the Borrower (the "Designated
Account") on the date each payment of principal and interest and any fees from
the Borrower becomes due (the "Due Date"). Approximately 7 days prior to each
Due Date, the Bank will mail to the Borrower a statement of the amounts that
will be due on that Due Date (the "Billed Amount"). The Bank will debit the
Designated Account for the Billed Amount, regardless of the actual amount due
on that date (the "Accrued Amount"). If the Billed Amount debited to the
Designated Account differs from the Accrued Amount, the discrepancy will be
added or subtracted from the amount due on the next due date. Regardless of any
such discrepancy, interest will continue to accrue based on the actual amount
of principal outstanding without compounding. The Bank will not pay the Borrower
interest on any overpayment. If there are insufficient funds in the Designated
Account on the date the Bank enters any debit authorized by this Agreement, the
debit will be reversed.
4.3 ADDITIONAL COSTS. The Borrower will pay the Bank, on demand, for the
Bank's costs or losses arising from any statute or regulation, or any request or
requirement of a regulatory agency. The costs and losses will be allocated to
the loan in a manner determined by the Bank, using any reasonable method. The
costs include the following: (a) any reserve or deposit requirements; and (b)
any capital requirements relating to the Bank's assets and commitments for
credit.
4.4 INTEREST CALCULATION. All interest and fees, if any, will be computed
on the basis of a 360 day year and the actual number of days elapsed. This
results in more interest or a higher fee than if a 365-day year is used.
4.5 INTEREST ON LATE PAYMENTS. At the Bank's sole option in each instance,
any amount not paid when due under this Agreement (including interest) shall
bear interest from the due date at the Reference Rate plus 1.00 percentage
points. This may result in compounding of interest.
4.6 DEFAULT RATE. Upon the occurrence and during the continuation of any
default under this Agreement, advances under this Agreement will at the option
of the Bank bear interest at a rate per annum which is 1.50 percentage points
higher than the rate of interest otherwise provided under this Agreement. This
will not constitute a waiver of any default.
5. CONDITIONS The Bank must receive the following items, in form and
content acceptable to the Bank, before it is required to extend any credit to
the Borrower under this Agreement.
5.1 AUTHORIZATIONS. Evidence that the execution, delivery and performance
by the Borrower (and any guarantors) of this Agreement and any instrument or
agreement required under this Agreement have been duly authorized.
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5.2 SECURITY AGREEMENTS. Signed original security agreements, assignments,
financing statements and fixture filings (together with collateral in which the
Bank requires a possessory security interest), which the Bank requires.
5.3 EVIDENCE OF PRIORITY. Evidence that security interests and liens in
favor of the Bank are valid, enforceable, and prior to all others' rights and
interests, except those the Bank consents to in writing.
5.4 INSURANCE. Evidence of insurance coverage, as required in the
"Covenants" section of this Agreement.
5.5 GUARANTIES. Guaranties signed by JDA Software Group, Inc., JDA
International, Ltd., and JDA Worldwide, Inc. on the Bank's standard form in an
amount as may be acceptable, from time to time, to the Bank.
6. REPRESENTATIONS AND WARRANTIES When the Borrower signs this
Agreement, and until the Bank is repaid in full, the Borrower makes the
following representations and warranties. Each request for an extension of
credit constitutes a renewed representation. (a) The Borrower is a corporation
duly formed and existing under the laws of the state where organized. (b) This
Agreement, and any instrument or agreement required hereunder, are within the
Borrower's or Guarantor's powers, have been duly authorized, and do not
conflict with any of its organizational papers. (c) This Agreement, and each
other agreement or document executed and delivered to the Bank in connection
with this Agreement, is a legal, valid and binding agreement of the Borrower,
enforceable against the Borrower in accordance with its terms, and any
instrument or agreement required hereunder, when executed and delivered, will
be similarly legal, valid, binding and enforceable. (d) In each state in which
the Borrower does business, it is properly licensed, in good standing, and,
where required, in compliance with fictitious name statutes. (e) This Agreement
does not conflict with any law, agreement, or obligation by which the Borrower
is bound. (f) All financial and other information that has been or will be
supplied to the Bank is: (i) sufficiently complete to give the Bank accurate
knowledge of the Borrower's (and any guarantor's) financial condition. (ii) in
form and content required by the Bank. (iii) in compliance with all government
regulations that apply. (g) There is no lawsuit, tax claim or other dispute
pending or threatened against the Borrower, which, if lost, would impair the
Borrower's financial condition or ability to repay the loan, except as have
been disclosed in writing to the Bank prior to the date of this Agreement. (h)
All collateral required in this Agreement is owned by the grantor of the
security interest free of any title defects or any liens or interests of
others, except those which have been approved by the Bank in writing. (i) The
Borrower possesses all permits, memberships, franchises, contracts and licenses
required and all trademark rights, trade name rights, patent rights and
fictitious name rights necessary to enable it to conduct the business in which
it is now engaged. (j) There is no event which is, or with notice or lapse of
time or both would be, a default under this Agreement. (k) The Borrower's place
of business (or, if the Borrower has more than one place of business, its
chief executive office) is located at the address listed under the Borrower's
signature on this Agreement.
7. COVENANTS The Borrower agrees, so long as credit is available under
this Agreement and until the Bank is repaid in full:
7.1 USE OF PROCEEDS. To use the proceeds of the credit only for working
capital and the issuance of standby letters of credit.
7.2 FINANCIAL INFORMATION. To provide the following financial information
and statements and such additional information as requested by the Bank from
time to time:
(a) Within 90 days of the Borrower's fiscal year end, the Borrower's annual
financial statements together with Borrower or CPA prepared consolidating
schedules. These financial statements must be audited (with an unqualified
opinion) by a Certified Public Accountant ("CPA") acceptable to the Bank. The
statements shall be prepared on a consolidated basis.
(b) Copies of the Borrower's Form 10-Q Quarterly Report, with consolidating
schedules, within 50 days of each quarter end.
(c) Within 90 days of the Borrower's fiscal year end, the Borrower's annual
projection of income statement.
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7.3 CURRENT RATIO. To maintain on a consolidated basis a ratio of current
assets to current liabilities of at least 1.75:1.0, tested annually.
7.4 TANGIBLE NET WORTH. To maintain on a consolidated basis tangible net
worth equal to at least Twenty Million and No/100 Dollars ($20,000,000.00),
tested annually. "Tangible net worth" means the gross book value of the
Borrower's assets (excluding goodwill, patents, trademarks, trade names,
organization expense, treasury stock, unamortized debt discount and expense,
deferred research and development costs, deferred marketing expenses, and other
like intangibles) plus debt subordinated to the Bank in a manner acceptable to
the Bank (using the Bank's standard form) less total liabilities, including but
not limited to accrued and deferred income taxes, and any reserves against
assets.
7.5 NET LOSS. Not to incur a net loss in any two consecutive quarters or
on a fiscal year end basis.
7.6 OTHER DEBTS. Not to have outstanding or incur any direct or contingent
debts or lease obligations (other than those to the Bank), or become liable for
the debts of others without the Bank's written consent. This does not prohibit:
(a) Acquiring goods, supplies, or merchandise on normal trade credit. (b)
Endorsing negotiable instruments received in the usual course of business. (c)
Obtaining surety bonds in the usual course of business. (d) Debts and lines of
credit in existence on the date of this Agreement disclosed in writing to the
Bank in the Borrower's financial statement dated March 31, 1995. (f) Additional
debts for business purposes which do not exceed a total principal amount of One
Million Two Hundred Fifty Thousand and No/100 Dollars ($1,250,000.00)
outstanding at any one time.
7.7 OTHER LIENS. Not to create, assume, or allow any security interest or
lien (including judicial liens) on property the Borrower now or later owns,
except: (a) Deeds of trust and security agreements in favor of the Bank. (b)
Liens for taxes not yet due.
7.8 CHANGE OF OWNERSHIP. Not to cause, permit, or suffer any change,
direct or indirect, in the Borrower's capital ownership in excess of 10%.
7.9 OUT OF DEBT PERIOD. To repay any advances in full, and not to draw any
additional advances on its revolving line of credit, for a period of at least
30 consecutive days in each calendar year.
7.10 NOTICES TO BANK. To promptly notify the Bank in writing of:
(a) any lawsuit over Five Hundred Thousand and No/100 Dollars ($200,000.00)
against the Borrower (or any guarantor). (b) any substantial dispute between
the Borrower (or any guarantor) and any government authority. (c) any failure
to comply with this Agreement. (d) any material adverse change in the
Borrower's (or any guarantor's) financial condition or operations. (e) any
change in the Borrower's name, legal structure, place of business, or chief
executive office if the Borrower has more than one place of business.
7.11 BOOKS AND RECORDS. To maintain adequate books and records.
7.12 AUDITS. To allow the Bank and its agents to inspect the Borrower's
properties and examine, audit, and make copies of books and records at any
reasonable time. If any of the Borrower's properties, books or records are in
the possession of a third party, the Borrower authorizes that third party to
permit the Bank or its agents to have access to perform inspections or audits
and to respond to the Bank's requests for information concerning such
properties, books and records.
7.13 COMPLIANCE WITH LAWS. To comply with the laws, (including any
fictitious name statute), regulations, and orders of any government body with
authority over the Borrower's business.
7.14 PRESERVATION OF RIGHTS. To maintain and preserve all rights,
privileges, and franchises the Borrower now has.
7.15 MAINTENANCE OF PROPERTIES. To make any repairs, renewals, or
replacements to keep the Borrower's properties in good working condition.
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7.16 PERFECTION OF LIENS. To help the Bank perfect and protect its security
interests and liens, and reimburse it for related costs it incurs to protect
its security interests and liens.
7.17 COOPERATION. To take any action requested by the Bank to carry out the
intent of this Agreement.
7.18 INSURANCE. (a) INSURANCE COVERING COLLATERAL. To maintain all risk
property damage insurance policies covering the tangible property comprising
the collateral. Each insurance policy must be in an amount acceptable to the
Bank. The insurance must be issued by an insurance company acceptable to the
Bank and must include a lender's loss payable endorsement in favor of the Bank
in a form acceptable to the Bank. (b) GENERAL BUSINESS INSURANCE. To maintain
insurance satisfactory to the Bank as to amount, nature and carrier covering
property damage (including loss of use and occupancy) to any of the Borrower's
properties, public liability insurance including coverage for contractual
liability, product liability and workers' compensation, and any other insurance
which is usual for the Borrower's business. (c) EVIDENCE OF INSURANCE. Upon the
request of the Bank, to deliver to the Bank a copy of each insurance policy or,
if permitted by the Bank, a certificate of insurance listing all insurance in
force.
7.19 ADDITIONAL NEGATIVE COVENANTS. Not to, without the Bank's written
consent: (a) engage in any business activities substantially different from the
Borrower's present business; (b) liquidate or dissolve the Borrower's business;
(c) enter into any consolidation, merger, pool, joint venture, syndicate, or
other combination; or (d) sell or otherwise dispose of any assets for less than
fair market value or enter into any sale and leaseback agreement covering any
of its fixed or capital assets.
8. DEFAULT. If any of the following events occur, the Bank may do one or
more of the following: declare the Borrower in default, stop making any
additional credit available to the Borrower, and require the Borrower to repay
its entire debt immediately and without prior notice. If an event of default
occurs under the paragraph entitled "Bankruptcy" below with respect to the
Borrower, the entire debt outstanding under this Agreement will automatically
be due immediately.
8.1 FAILURE TO PAY. The Borrower fails to make a payment under this
Agreement when due.
8.2 LIEN PRIORITY. The Bank fails to have an enforceable first lien (except
for any prior liens to which the Bank has consented in writing) on or security
interest in any property given as security for the extensions of credit under
this Agreement.
8.3 FALSE INFORMATION. The Borrower (or any guarantor) has given the Bank
false or misleading information or representations.
8.4 BANKRUPTCY. The Borrower (or any guarantor or general partner of the
Borrower) files a bankruptcy petition, a bankruptcy petition is filed against
the Borrower (or any guarantor or general partner of the Borrower), or the
Borrower (or any guarantor or general partner of the Borrower) makes a general
assignment for the benefit of creditors.
8.5 RECEIVERS. A receiver or similar official is appointed for the
Borrower's (or any guarantor's) business, or the business is terminated.
8.6 LAWSUITS. Any lawsuit or lawsuits are filed on behalf of one or more
trade creditors against the Borrower in an aggregate amount of One Million and
No/100 Dollars ($1,000,000.00) or more in excess of any insurance coverage.
8.7 JUDGMENTS. Any judgments or arbitration awards are entered against the
Borrower (or any guarantor), or the Borrower (or any guarantor) enters into any
settlement agreements with respect to any litigation or arbitration, in an
aggregate amount of Five Hundred Thousand and No/100 Dollars ($500,000.00) or
more in excess of any insurance coverage.
8.8 GOVERNMENT ACTION. Any government authority takes action that the Bank
believes materially adversely affects the Borrower's (or any guarantor's)
financial condition or ability to repay.
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8.9 MATERIAL ADVERSE CHANGE. A material adverse change occurs in the
Borrower's (or any guarantor's) financial condition, properties or prospects,
or ability to repay the extensions of credit under this Agreement.
8.10 CROSS-DEFAULT. Any default occurs under any agreement in connection
with any credit the Borrower (or any guarantor) has obtained from anyone else
or which the Borrower (or any guarantor) has guaranteed in the amount of Two
Hundred Thousand and No/100 ($200,000.00) or more in the aggregate.
8.11 DEFAULT UNDER RELATED DOCUMENTS. Any guaranty, subordination
agreement, security agreement, deed of trust, or other document required by
this Agreement is violated or no longer in effect.
8.12 OTHER BANK AGREEMENTS. The Borrower (or any guarantor) fails to meet
the conditions of, or fails to perform any obligation under any other agreement
the Borrower (or guarantor) has with the Bank or any affiliate of the Bank.
8.13 OTHER BREACH UNDER AGREEMENT. The Borrower fails to meet the
conditions of, or fails to perform any obligation under, any term of this
Agreement not specifically referred to in this Article.
9. ENFORCING THIS AGREEMENT; MISCELLANEOUS
9.1 GAAP. Except as otherwise stated in this Agreement, all financial
information provided to the Bank and all covenants will be made under generally
accepted accounting principles, consistently applied.
9.2 ARIZONA LAW. This Agreement is governed by Arizona law.
9.3 SUCCESSORS AND ASSIGNS. This Agreement is binding on the Borrower's
and the Bank's successors and assignees. The Borrower agrees that it may not
assign this Agreement without the Bank's prior consent.
9.4 ARBITRATION. (a) Unless expressly prohibited by law, any controversy
or claim between or among the parties, including but not limited to those
arising out of or relating to this Agreement or any agreements or instruments
relating hereto or delivered in connection herewith and any claim based on or
arising from an alleged tort, shall at the request of any party be determined
by arbitration. The arbitration shall be conducted in accordance with the United
States Arbitration Act (Title 9, U.S. Code), notwithstanding any choice of law
provision in this Agreement, and under the Commercial Rules of the American
Arbitration Association ("AAA"). The arbitrator(s) shall give effect to
statutes of limitation in determining any claim. Any controversy concerning
whether an issue is arbitrable shall be determined by the arbitrator(s).
Judgment upon the arbitration award may be entered in any court having
jurisdiction. The institution and maintenance of an action for judicial relief
or pursuit of a provisional or ancillary remedy shall not constitute a waiver
of the right of any party, including the plaintiff, to submit the controversy
or claim to arbitration if any other party contests such action for judicial
relief. (b) No provision of this paragraph shall limit the right of any party
to this Agreement to exercise self-help remedies such as setoff, to foreclose
against or sell any real or personal property collateral or security, or to
obtain provisional or ancillary remedies from a court of competent jurisdiction
before, after, or during the pendency of any arbitration or other proceeding.
The exercise of a remedy does not waive the right of either party to resort to
arbitration. At the Bank's option, foreclosure under a deed of trust or
mortgage may be accomplished either by exercise of power of sale under the deed
of trust or by judicial foreclosure of the deed of trust or mortgage.
9.5 SEVERABILITY; WAIVERS. If any part of this Agreement is not
enforceable, the rest of the Agreement may be enforced. The Bank retains all
rights, even if it makes a loan after default. If the Bank waives a default,
it may enforce a later default. Any consent or waiver under this Agreement
must be in writing.
9.6 ADMINISTRATION COSTS. The Borrower shall pay the Bank for all
reasonable costs incurred by the Bank in connection with administering this
Agreement.
9.7 ATTORNEYS' FEES. The Borrower shall reimburse the Bank for any
reasonable costs and attorneys' fees incurred by the Bank in connection with
the enforcement or preservation of any rights or remedies under this Agreement
and any other documents executed in connection with this Agreement, and
including any amendment, waiver, "workout" or restructuring under this
Agreement. In the event of a lawsuit or arbitration proceeding, the
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prevailing party is entitled to recover costs and reasonable attorneys' fees
incurred in connection with the lawsuit or arbitration proceeding, as
determined by the court or arbitrator. As used in this paragraph, "attorneys'
fees" includes the allocated costs of in-house counsel.
9.8 One Agreement. This Agreement and any related security or other agreements
required by this Agreement, collectively: (a) represent the sum of the
understandings and agreements between the Bank and the Borrower concerning this
credit; and (b) replace any prior oral or written agreements between the Bank
and the Borrower concerning this credit; and (c) are intended by the Bank and
the Borrower as the final, complete and exclusive statement of the terms agreed
to by them. In the event of any conflict between this Agreement and any other
agreements required by this Agreement, this Agreement will prevail.
9.9 Usury Laws. This paragraph covers the transactions described in this
Agreement and any other agreements with the Bank or its affiliates executed in
connection with this Agreement, to the extent they are subject to the Arizona
usury laws (the "Transactions"). The Borrower understands and believes that the
Transactions comply with the Arizona usury laws. However, if any interest or
other charges paid or payable in connection with the Transactions are ever
determined to exceed the maximum amount permitted by law, the Borrower agrees
that:
(a) the amount of interest or other charges payable by the Borrower pursuant
to the Transactions shall be reduced to the maximum amount permitted
by law; and
(b) any excess amount previously collected from the Borrower in connection with
the Transactions which exceeded the maximum amount permitted by law will be
credited against the then outstanding principal balance. If the outstanding
principal balance has been repaid in full, the excess amount paid will be
refunded to the Borrower.
All fees, charges, goods, things in action or any other sums or things of
value, other than interest at the interest rate described in this Agreement,
paid or payable by the Borrower (collectively the "Additional Sums"), that may
be deemed to be interest with respect to the Transactions, shall, for the
purpose of any laws of the State of Arizona that may limit the maximum amount
of interest to be charged with respect to the Transactions, be payable by
Borrower as, and shall be deemed to be, additional interest. For such purposes
only, the agreed upon and "contracted for rate of interest" of the Transactions
shall be deemed to be increased by the rate of interest resulting from the
Additional Sums.
9.10 Counterparts. This Agreement may be executed in an many counterparts as
necessary or convenient, and by the different parties on separate counterparts
each of which, when so executed, shall be deemed an original but all such
counterparts shall constitute but one and the same agreement.
9.11 Prior Agreement Superseded. This Agreement supersedes the Business Loan
Agreement entered into as of August 1, 1994, between the Bank and the Borrower,
as such agreement has been amended from time to time prior to the date hereof,
and any credit outstanding thereunder shall be deemed to be outstanding under
this Agreement.
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This Agreement is executed as of the date stated at the top of the first page.
BANK OF AMERICA ARIZONA JDA SOFTWARE, INC.
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxxxx
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By: Xxxxx X. Xxxxxxx, By: Xxxxx X. Xxxxxxxxx, CEO
Vice President
/s/ Xxxxxx X. Proud
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By: Xxxxxx X. Proud,
CFO/Secretary
Address where notices to the Address where notices to
Bank are to be sent: Borrower are to be sent:
Commercial Lending, #8211 00000 Xxxxx Xxxxx Xxxxxxxxx,
000 Xxxxx Xxxxx Xxxxxx Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000 Xxxxxxx, Xxxxxxx 00000
9
