EXHIBIT 10.4.2
SUBORDINATED FLOATING RATE NOTE
DUE MAY 5, 2000
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES ACT AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM, OR IN THE ABSENCE OF RECEIPT BY THE
COMPANY OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT IT
MAY BE SOLD OR TRANSFERRED WITHOUT SUCH REGISTRATION.
TSW INTERNATIONAL, INC.
May 5, 1995 $1,500,000
TSW INTERNATIONAL, INC., a Georgia corporation (herein, together with its
successors and assigns, the "Company"), for value received, hereby promises to
pay on May 5, 2000 (the "Stated Maturity") to Warburg, Xxxxxx Investors, L.P.,
or its registered assigns, the principal amount (the "Principal Amount")which is
limited to amounts disbursed to the Company under this Subordinated Floating
Rate Note ("Note"), but in no event shall the total advances exceed One Million
Five Hundred Thousand Dollars ($1,500,000), all amounts advanced to the Company
being shown on the attached Schedule of Loan Disbursements as described in
Section 3 below.
1. Interest
(a) Subject to the provisions of Section 5 hereof, the Company promises to
pay interest on the Principal Amount of this Note at a rate per annum equal to
the Prime Rate plus one and one-half percent (1-1/1%) (the "Applicable Prime
Rate") from date of advance to the Stated Maturity. All interest will be
calculated on the basis of a 360-day year and the actual number of days elapsed.
Interest payments will accrue monthly in arrears and will be paid at the Stated
Maturity. Interest on the Note shall accrue on each installment from the date of
advance of each installment to the date of repayment; PROVIDED, HOWEVER, that if
such payment occurs after 12:00 noon, New York City time, interest shall be
deemed to accrue thereon until the following Business Day. To the extent lawful,
the Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at a rate equal to 2%
per annum in excess of the interest rate then applicable to the Note; it shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest without regard to any
applicable grace period) at the same rate to the extent lawful.
(b) As used in this Note, the following terms shall have the following
meanings:
"Accrued Amount" means, at any particular time, the Principal Amount then
outstanding together with any and all unpaid and accrued interest.
"Prime Rate" shall mean, as of any given date, the average of the prime,
base, or equivalent rates of interest as are publicly announced, or published,
by Xxxxxx Guaranty Trust Company of New York, Citibank, N.A., Chemical Bank and
The Chase Manhattan Bank (National Association), or the successor by merger or
consolidation to any of such banks (with the understanding that such rates may
merely serve as a basis upon which
effective rates of interest are calculated for loans making reference thereto
and that such rates are not necessarily the lowest or best rates at which such
banks calculate interest or extend credit). Any change in the Prime Rate will be
effective on the date such change is announced by each of, or any of, such
banks.
2. Method of Payment
The payment of the Accrued Amount of this Note shall be made in lawful
money of the United States of America against the presentation of this Note at
the principal office of the Company located at 0000 Xxxxx Xxxxx Xxxxxxx,
Xxxxxxx, Xxxxxxx 00000 to the registered holder of this Note (the "holder") at
the Stated Maturity; provided, however, that payment of the Accrued Amount may
be made only if and to the extent that payment of a distribution to the
Company's shareholders can then be made under O.C.G.A. Section 14-2-640 or any
successor thereto.
3. Method of Recording Advances
Holder shall record on the Schedule of Loan Disbursements attached hereto
and made a part hereof appropriate notations to evidence the date and amount of
each advance made by it to the Company. Holder is hereby irrevocably authorized
by the Company to make such recording upon each advance and notice thereof to
the Company and to attach as a part of this Note a continuation of such Schedule
as and when required, provided that the failure of Holder to do so shall not
affect the obligations of the Company hereunder.
4. Subordination
(a) SUBORDINATION TO SENIOR INDEBTEDNESS. This Note is subordinated in
right of payment to all existing and future Senior Indebtedness. Senior
Indebtedness is the principal of, interest on (including, without limitation,
interest accruing after the occurrence of any bankruptcy or similar proceeding
whether or not such interest constitutes an allowable claim in such proceeding)
and all other amounts, payable in connection with any Debt of the Company except
Debt that by its terms is not superior in right of payment to this Note. A Debt
is (i) any indebtedness to NationsBank of Georgia, N.A. or any affiliate thereto
(A) for borrowed money, (B) evidenced by a note, debenture or similar instrument
(including a purchase money obligation) given in connection with the acquisition
of any property or assets (other than inventory or similar property acquired in
the ordinary course of business) or(C) for the payment of money relating to a
capitalized lease obligation; (ii) any guarantee by the Company of indebtedness
for borrowed money or indebtedness incurred as described in (i)(B) or (C) above,
and (iii) any renewal, extension, refunding or amendment of any indebtedness,
obligation or guarantee. For purposes of the Agreement, Senior Indebtedness
shall include the indebtedness evidenced by (i) that certain Loan Agreement
dated August 19, 1993, between NationsBank of Georgia N.A. ("NationsBank") and
the Company; (ii) that certain Promissory Note in the amount of $2,000,000 dated
September 1, 1994 by Company in favor of NationsBank; (iii) that certain
Promissory Note in the amount of $550,000 dated September 1, 1994 by Company in
favor of NationsBank; (iv) that certain Security Agreement dated September 1,
1994 between NationsBank and the Company; (v) that certain Promissory Note in
the amount of $450,000 dated June 20, 1994 by Company in favor of NationsBank;
(vi) that certain Equipment Leasing Facility dated February 7, 1994 between
NationsBanc Leasing Corporation and the Company; and (vii) any successor loans,
modifications or amendments to any of the agreements specified in clauses (i) -
(vi) of the foregoing or new borrowings (collectively, the "NationsBank
Indebtedness").
(b) LIQUIDATION, DISSOLUTION; BANKRUPTCY. Upon any distribution to
creditors of the Company in a liquidation or dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(i) the holder of Senior Indebtedness shall be entitled to receive
payment in full in cash of the principal thereof and interest thereon to the
date of payment of the Senior Indebtedness and all other amounts payable in
connection therewith before the Holder shall be entitled to receive any payment
on this Note; and
(ii) until the Senior Indebtedness is paid in full in cash, any
distribution to which the Holder would otherwise be entitled shall be made to
holders of the Senior Indebtedness as their interest may appear, except that the
Holder may receive securities that are subordinated to Senior Indebtedness to at
least the same extent as this Note.
(c) ACCELERATION OF NOTE. If payment of this Note is accelerated because
of an Event of Default, the Company shall promptly notify holders of Senior
Indebtedness of the acceleration. The Company shall pay this Note when 120 days
pass after acceleration occurs if the terms of this Note permit payment at that
time.
(d) DEFAULT ON SENIOR INDEBTEDNESS. The Company may not pay the Accrued
Amount of this Note and may not acquire this Note for cash or property other
than capital stock of the Company if:
(i) a default on Senior Indebtedness occurs and is continuing or
would occur by such payment that permits holders of Senior Indebtedness or, as
the case may be, holders of indebtedness or other obligations that are the
subject of a guarantee constituting Senior Indebtedness to accelerate the
maturity of such Senior Indebtedness, indebtedness or obligations or if the
Senior Indebtedness is not paid at the maturity thereof, or
(ii) the Senior Indebtedness has been accelerated.
The Company may resume payments on this Note and may acquire it when the
default is cured or waived, if the terms of this Note otherwise permit the
payment or acquisition at that time.
(e) WHEN DISTRIBUTION MUST BE PAID OVER. If a distribution is made to the
Holder that, because of the terms hereof, should not have been made to the
Holder, the Holder shall hold the distribution in trust for holders of the
Senior Indebtedness and, upon demand by the Company or any holder of Senior
Indebtedness, pay it over to them as their interests may appear.
(f) RELATIVE RIGHTS. This Section defines the relative rights of the
Holder and holders of Senior Indebtedness. Nothing in this Note shall:
(i) impair, as between the Company and the Holder the obligation of
the Company, which is absolute and unconditional, to pay the Principal Amount of
this Note in accordance with the terms hereof;
(ii) affect the relative rights of the Holder and creditors of the
Company other than holders of Senior Indebtedness; or
(iii) prevent the Holder from exercising its available remedies upon
an Event of Default, subject to the rights of holders of Senior Indebtedness to
receive distributions otherwise payable to the Holder.
If the Company fails because of this Section to pay the Accrued Amount of
this Note on the due date, the failure is still an Event of Default.
(g) SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. No right of any holder
of Senior Indebtedness to enforce the subordination of the indebtedness
evidenced by this Note shall be impaired by any act or failure to act by the
Company or by its failure to comply with the terms hereof.
5. Restriction on Payments, Redemptions
Notwithstanding anything in this Note to the contrary, as long as Senior
Indebtedness to NationsBank or any affiliate thereto remains outstanding,
without the consent of NationsBank or such affiliate, the Company shall make no
payments of or redeem any portion of the Accrued Amount.
6. Optional Redemption
The Company may redeem, on any interest payment date, all or any portion of
the Principal Amount at a price equal to the amount of the Principal Amount
redeemed, plus accrued interest to the redemption date.
7. No Mandatory Redemption
The Principal Amount is not subject to mandatory redemption absent a
registration of the Company's capital stock effected by the filing of a
registration statement in compliance with the Securities Act of 1933, as amended
(the "1933 Act") (and any post-effective amendments filed or required to be
filed) and the declaration or ordering of effectiveness of such registration
statement, in which event the entire Principal Amount shall be redeemed at a
price equal to the total amount of the Principal Amount then outstanding, plus
interest to the redemption date.
8. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to the Holder at its registered address. This
Note may be redeemed in part but only in whole multiples of $250,000, unless the
remaining Principal Amount is to be redeemed. On and after the redemption date
interest ceases to accrue on this Note or any portion called for redemption.
9. Denominations
This Note is in registered form without coupons in a single denomination of
up to $1,100,000.
10. Person Deemed Owners
The registered holder of this Note will be treated as its owner for all
purposes.
11. Defaults and Remedies
(a) Events of Default. An "Event of Default" occurs if:
(i) the Company defaults in the payment of the Principal Amount and
accrued interest on this Note when the same becomes due and payable at its
Stated Maturity, whether or not such payment shall be prohibited by Section 5:
(ii) the Company fails to comply with any of its agreements in this
Note (other than those referred to in clause (i) above) and such failure
continues for 30 days after receipt by the Company of notice of default from the
Holder;
(iii) the Company pursuant to or within the meaning of Title 11 of the
United States Code, or any similar federal or state law for the relief of
debtors (a "Bankruptcy Law"):
A. commences a voluntary case or proceeding;
B. consents to the entry of any order for relief against it in
any involuntary case or proceeding or the commencement of
any case against it;
C. consents to the appointment of any receiver, trustee,
assignee, liquidator, custodian or similar official under
any Bankruptcy Law (a "Custodian"), of the Company or for
any substantial part of its property;
D. makes a general assignment for the benefit of its creditors;
E. files a petition in bankruptcy or answer or consent seeking
reorganization or relief; or
F. consents to the filing of such petition or the appointment
of or taking possession by a Custodian; or
(iv) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
A. is for relief against the Company in an involuntary case or
proceeding or adjudicates the Company insolvent or bankrupt;
B. appoints a Custodian of the Company or for any substantial
part of its property; or
C. orders the winding up or liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 days.
(b) ACCELERATION. If any Event of Default occurs and is continuing, the
Holder, by written notice to the Company, may declare the Accrued Amount on this
Note to be due and payable. Upon such a declaration, such Accrued Amount shall
become and be immediately due and payable without presentment, demands protest,
notice of non-payment or any other notice required by law relative thereto, all
of which are hereby expressly
waived by the Company. The Holder, by written notice to the Company, may rescind
an acceleration and its consequences if the recission would not conflict with
any judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of the Accrued Amount and any interest thereon pursuant
to Section 1 hereof that has become due solely as a result of acceleration. No
such recission shall affect any subsequent Event of Default or impair any right
consequent thereto.
(c) OTHER REMEDIES. If any Event of Default occurs and is continuing, the
Holder may pursue any available remedy to collect the payment of the Accrued
Amount on this Note or to enforce the performance of any provision hereof. A
delay or omission by the Holder in exercising any right or remedy accruing upon
an Event of Default shall not impair the right or remedy or constitute a waiver
of, or acquiescence in, the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
(d) COSTS OF ENFORCEMENT. The Company agrees to pay or reimburse the
Holder for all its costs and expenses, including attorneys' fees, in connection
with the enforcement of its rights under this Note.
12. Notices
All notices and other communications required to be given hereunder shall
be in writing and shall be deemed to have been duly given upon delivery, if
delivery by hand; if given by mail, three (3) days after the date of mailing,
postage prepaid, certified or registered mail to a party hereto at the address
set forth below; if given by facsimile, upon transmission to the number set
forth below provided written confirmation is sent to the address below; if given
by overnight delivery service addressed to the address set forth below, the
business day following the day on which such notice is sent:
If to the Company:
TSW International, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Xxxxxxxxx: (000) 000-0000
With a copy to:
Xxxxxxxx Xxxxxxx
NationsBank Plaza
000 Xxxxxxxxx Xxxxxx, X.X.
Suite 5200
Atlanta, Georgia 30308-2216
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
If to the Holder:
Warburg, Xxxxxx Investors, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X.Xxxxx
Xxxxxxxxx: (000) 000-0000
Either party hereto may change its address for purposes of receiving notices
pursuant to this Note by giving notice to such new address to the other party
hereto.
13. Amendments, Supplements and Waivers
This Note may be amended or supplemented, with the consent of the Holder.
The Holder may waive an existing Event of Default and its consequences. When an
Event of Default is waived, it is deemed cured, but no such waiver shall extend
to any subsequent or other Event of Default or impair any consequent right.
14. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under this Note
or for any claim based on, in respect of or by reason of, such obligations or
their creation. The Holder by accepting this Note waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
this Note.
15. Governing Law
The laws of the State of Georgia shall govern this Note.
IN WITNESS WHEREOF, the Company has caused this Note to be signed by its
officer hereunder authorized, as of the date first above written.
TSW INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: President
ASSIGNMENT FORM
To assign this Note, fill in the form below: {I or We} assign and transfer this
Note to:
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(insert assignee's soc. sec. no. or tax I.D. no.
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(print or type assignee's name, address and zip code)
and irrevocably appoint
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agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
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Date:
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Your Signature:
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(Sign exactly as your name appears on the
face of this Note.)
Signature Guarantee.
SCHEDULE OF LOAN DISBURSEMENTS
ATTACHED TO AND FORMING
A PART OF SUBORDINATED FLOATING RATE NOTE
DATED AS OF FEBRUARY 14, 1995
Loan Disbursement
(Principal Amount) Date of Advance
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SCHEDULE TO EXHIBIT 10.4.2
SCHEDULE OF TERMS OF
SUBORDINATED FLOATING RATE NOTES
PAYABLE BY TSW INTERNATIONAL, INC. TO WARBURG, XXXXXX INVESTORS, L.P.
DATE OF AGREEMENT DEBT ISSUED NOTE DUE DATE
----------------- ----------- -------------
6/20/94 $4,000,000 7/31/99
11/10/94 2,500,000 11/10/99
1/4/95 3,500,000 1/4/00
2/14/95 1,100,000 2/24/00
5/5/95 1,500,000 5/5/00
6/27/95 400,000 6/27/00
10/13/95 2,500,000 10/13/00
