EXHIBIT 10(a)(2)
First Amendment to Loan Agreement
by and between Symix Systems, Inc.,
Symix Computer Systems, Inc.
and Bank One, N.A.
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT ("First Amendment") is made and entered
into as of _____________________, 1997, by and between Symix Systems, Inc., a
corporation organized and existing under the laws of the State of Ohio, located
at 0000 Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000 ("SSI"), Symix Computer
Systems, Inc., a corporation organized and existing under the laws of the state
of Ohio, located at 0000 Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000
("SCSI"), (SSI and SCSI each a "Company" and jointly and severally the
"Companies"), and Bank One, NA, successor by merger to Bank One, Columbus, N.A.,
000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (hereinafter called "Bank One").
WITNESSETH:
WHEREAS, Companies and Bank entered into a Loan Agreement dated as of May 20,
1996, pursuant to which Companies obtained a Credit Commitment from Bank in the
maximum aggregate amount of Six Million Dollars ($6,000,000.00) (the
"Agreement"); and
WHEREAS, Companies and Bank have agreed to amend the Agreement in order, among
other things, to extend the maturity of the Credit Commitment upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, the parties agree as follows:
A. Section 1.1.1 of the Agreement is hereby deleted in its entirety and
replaced with the following:
1.1.1 AMOUNT. Bank One hereby agrees to lend Companies the maximum
aggregate amount of Six Million Dollars ($6,000,000) (the "Credit
Commitment"). This Credit Commitment shall be available to
Companies in the form of a revolving credit loan in the maximum
amount of Six Million Dollars ($6,000,000) minus the drawn or
undrawn principal amount of any letter of credit or other
independent undertaking issued by Bank One for the account of the
Companies (provided, however, that neither that certain letter of
credit issued August 5, 1996 in the amount of $1,013,916.50
expiring November 23, 1999 nor that certain letter of credit
issued January 9, 1997 in the amount of $370,370.37 expiring
February 3, 1998 shall be subtracted from the maximum amount to
determine availability), with an option to convert the balance to
a term loan, subject to the terms and conditions hereinafter set
forth.
B. Section 1.1.2 of the Agreement is hereby deleted in its entirety and
replaced with the following:
1.1.2 DISBURSEMENTS. Companies shall execute and deliver to Bank One a
promissory note in the form of Exhibit "A-2" attached hereto
(hereinafter referred to as the
"Revolving Credit Note"). Disbursements on the Revolving Credit
Note shall be made by Bank One upon Companies' request.
Companies shall have the right to pay all or any part of the
outstanding principal balance on the Revolving Credit Note at
any time without penalty and Companies may then reborrow such
amounts. Provided only, however, that at no time may the
principal balance outstanding under the Revolving Credit Note
exceed the Credit Commitment.
C. Section 1.1.4 of the Agreement is hereby deleted in its entirety and
replaced with the following:
1.1.4 MATURITY AND INTEREST RATE. The Revolving Credit Note will
mature on October 31, 1999 and shall bear interest prior to
maturity at an interest rate to be elected by the Companies from
one of the following:
(a) PRIME RATE. A rate equal to the Prime Rate. Interest
payable under this option shall be paid by Companies on the last
day of any calendar quarter in which the Companies have elected
the Prime Rate option to be in effect. The rate of interest
shall be adjusted to reflect the change in the Prime Rate
effective immediately following any change in the Prime Rate; or
(b) LIBOR RATE. A rate ("LIBOR Rate") equal to two hundred
(200) basis points in excess of the rate of interest at which
Bank One is offered U.S. dollar deposits in the London Eurodollar
Interbank Market in an amount equal to the principal amount of
such Loan for the period of thirty (30) days, sixty (60) days,
ninety (90) days, one hundred twenty (120) days, one hundred
eight (180) days or one year (the "Benchmark Rate") (to be
elected at the option of the Companies) in effect, and as quoted
by Bank One by telephone to, and accepted by, the Companies prior
to 2:00 P.M., Ohio time, commencing on the day the election is
made. In addition, the Companies shall pay any LIBOR reserve
costs in effect which would be incurred by Bank One with respect
to LIBOR borrowings hereunder. Interest payable at the LIBOR
Rate shall be paid on the last day of any calendar quarter in
which the Companies have elected the LIBOR Rate option to be in
effect. In the event the Companies fail prior to or on the last
day of the period so elected to elect a subsequent such period,
interest shall automatically accrue thereafter at the Prime Rate
option as herein set forth. The Companies may not elect an
interest rate period expiring after October 31, 1999. If a LIBOR
Rate loan is paid before the expiration of its period, as elected
by Companies above, then upon notice thereof by Bank One to the
Companies, the Companies shall prepay the principal amount of the
loan plus an interest amount calculated from the beginning of the
interest period to the date of prepayment at the Prime Rate.
(c) LEVERAGE BASED PRICING. If, at the end of any calendar
quarter, the Leverage Ratio is less than or equal to 1.5 to 1.0,
the interest rate for the succeeding calendar quarter shall be
adjusted to, as appropriate, either the Prime Rate minus One-eight
of one percent (0.125%) or one hundred seventy-five (175)
basis points in excess of the Benchmark Rate. If, at the end of
any calendar quarter, the Leverage Ratio is less than or equal to
1.0 to 1.0, the interest rate for the succeeding calendar quarter
shall be adjusted to, as appropriate, either the Prime Rate minus
One-fourth of one percent (0.250%) or one hundred fifty (150)
basis points in excess of the Benchmark Rate.
D. Section 1.2.1 of the Agreement is hereby deleted in its entirety and
replaced with the following:
1.2.1 CONVERSION TO A TERM NOTE. Subject to the limitations provided
herein, and provided that no Event of Default has occurred and is
continuing, Companies may at any time on or before October 31,
1999 convert a maximum amount not to exceed Six Million Dollars
($6,000,000.00) owing under the Revolving Credit Note into a term
promissory note (hereinafter referred to as the "Term Note").
Such Term Note shall be executed by Companies and delivered to
Bank One in the form of Exhibit "B-2" attached hereto. Upon
execution and delivery of the Term Note, Bank One's obligation to
make further loan disbursements to Companies under the Revolving
Credit Note shall cease.
E. Section 1.2.3 of the Agreement is hereby deleted in its entirety and
replaced with the following:
1.2.3 PRINCIPAL PAYMENTS. Principal payments on the Term Note shall be
made to Bank One in consecutive equal quarterly installments each
in an amount equal to one-twentieth of the face amount of the
Term Note, beginning December 31, 1999 and continuing on the last
day of each succeeding calendar quarter until October 31, 2004,
when any remaining principal balance shall be due and payable.
F. Section 1.2.4 of the Agreement is hereby deleted in its entirety and
replaced with the following:
1.2.4 MATURITY AND INTEREST RATE. The Term Note will mature on
October 31, 2004 and shall bear interest prior to maturity at an
interest rate to be elected by the Companies from one of the
following:
(a) PRIME RATE. A rate equal to the Prime Rate. Interest
payable under this option shall be paid by Companies on the last
day of any calendar quarter in which the Companies have elected
the Prime Rate option to be in effect. The rate of interest
shall be adjusted to reflect the change in the Prime Rate
effective immediately following any change in the Prime Rate; or
(b) LIBOR RATE. A rate ("LIBOR Rate") equal to two hundred
(200) basis points in excess of the rate of interest at which
Bank One is offered U.S. dollar deposits in the London Eurodollar
Interbank Market in an amount equal to the principal amount of
such Loan for the period of thirty (30) days, sixty (60) days,
ninety (90)
days, one hundred twenty (120) days, one hundred eighty (180)
days or one year (the "Benchmark Rate") (to be elected at the
option of the Companies) in effect, and as quoted by Bank One
by telephone to, and accepted by, the Companies prior to 2:00
P.M., Ohio time, commencing on the day the election is made.
In addition, the Companies shall pay any LIBOR reserve costs in
effect which would be incurred by Bank One. Interest payable
at the LIBOR Rate shall be paid on the last day of any calendar
quarter in which the Companies have elected the LIBOR Rate
option to be in effect. In the event the Companies fail prior
to or on the last day of the period so elected to elect a
subsequent such period, interest shall automatically accrue
thereafter at the Prime Rate option as herein set forth. The
Companies may not elect an interest rate period expiring after
October 31, 2004. If a LIBOR Rate loan is paid before the
expiration of its period, as elected by Companies above, then
upon notice thereof by Bank One to the Companies, the Companies
shall prepay the principal amount of the loan plus an interest
amount calculated from the beginning of the interest period to
the date of prepayment at the Prime Rate.
(c) LEVERAGE BASED PRICING. If, at the end of any calendar
quarter, the Leverage Ratio is less than or equal to 1.5 to
1.0, the interest rate for the succeeding calendar quarter
shall be adjusted to, as appropriate, either the Prime Rate
minus One-eighth of one percent (0.125%) or one hundred
seventy-five (175) basis points in excess of the Benchmark
Rate. If, at the end of any calendar quarter, the Leverage
Ratio is less than or equal to 1.0 to 1.0, the interest rate
for the succeeding calendar quarter shall be adjusted to, as
appropriate, either the Prime Rate minus One-fourth of one
percent (0.250%) or one hundred fifty (150) basis points in
excess of the Benchmark Rate.
G. Section 5.12 of the Agreement is hereby deleted in its entirety and
replaced with the following:
5.12 CURRENT RATIO. Companies shall not permit the Consolidated Current
Ratio to be less than 2.50 to 1.00.
H. The definition of "Current Assets" and "Current Liabilities" in Section 8
of the Agreement is hereby deleted in its entirety and replaced with the
following:
"Current Assets" and "Current Liabilities" shall mean the current assets
and current liabilities of the Companies, all determined in accordance with
generally accepted accounting principles applied on a consistent basis;
provided, however, that prepaid expenses in excess of Five Hundred Thousand
Dollars ($500,000.00) shall not be considered a current asset for purposes
of this Agreement; and provided further, however, that deferred revenues
shall not be considered a current liability for purposes of this Agreement.
I. The definition of "Guarantors" in Section 8 of the Agreement is hereby
deleted in its entirety and replaced with the following:
"Guarantors" shall mean Symix Computer Systems (Canada), Inc., Symix
Computer Systems (U.K.) Limited, Symix (U.K.) Limited, Symix Asia Company
Limited, Symix Computer Systems (Hong Kong) Ltd., Symix Computer Systems
(Singapore) Pte. Ltd., Symix Computer Systems (Australia) Pty Ltd, Symix
Computer Systems (Mexico) S. De X.X. De C.V. and Symix Systems, B.V.
J. Exhibit "A" to the Agreement is hereby replaced by Exhibit "A-2" attached
hereto. Exhibit "B" to the Agreement is hereby replaced by Exhibit "B-2"
attached hereto. Companies shall execute and deliver to Bank an Amended and
Restated Revolving Credit Note in the form of Exhibit "A-2". Companies shall
execute and deliver to Bank an Amended and Restated Revolving Credit Note in the
form of Exhibit "B-2".
I. This First Amendment is a revision only and not a novation, and except as
specifically modified by the terms and conditions of this First Amendment, all
of the terms and conditions of the Agreement remain in full force and effect.
THE PARTIES HAVE HEREUNTO SET THEIR HANDS and caused this First Amendment to be
duly executed by their respective duly-authorized officers on the day and year
set forth below.
Bank One, NA
By:
---------------------------------
Its
------------------------------
Date:
-------------------------------
Symix Systems, Inc.
By: /s/ Xxxxxxxx X. XxXxxx
----------------------------------------
Xxxxxxxx X. XxXxxx, Its Vice President,
Chief Financial Officer and Secretary
Date:
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Symix Computer Systems, Inc.
By: /s/ Xxxxxxxx X. XxXxxx
----------------------------------------
Xxxxxxxx X. XxXxxx, Its Vice President,
Chief Financial Officer and Secretary
Date:
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ACKNOWLEDGMENT AND AGREEMENT BY GUARANTORS
The foregoing First Amendment to Loan Agreement is hereby acknowledged and
agreed to by the undersigned guarantors of the Notes, confirming the continuing
validity of their respective guaranty agreements. This Acknowledgment may be
executed and delivered in any number of counterparts, all of which, taken
together, shall constitute one and the same instrument, and any of the parties
hereto may execute this Acknowledgment by signing any such counterpart.
Symix Computer Systems (Canada), Inc.
By:/s/ Xxxxxxxx X. Xxx
-----------------------------------
Xxxxxxxx X. Xxx, Chairman
Date:
---------------------------------
Symix Computer Systems (U.K.) Limited
By:/s/ Xxxxxxxx X. Xxx
-----------------------------------
Xxxxxxxx X. Xxx, Director
Date:
---------------------------------
And By:/s/ Xxxxxxxx X. XxXxxx
-------------------------------
Xxxxxxxx X. XxXxxx, Secretary
Date:
---------------------------------
Symix (U.K.) Limited
By:/s/ Xxxxxxxx X. Xxx
-----------------------------------
Xxxxxxxx X. Xxx, Director
Date:
---------------------------------
And By:/s/ Xxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx, Secretary
Date:
---------------------------------
Symix Asia Company Limited
By:
-----------------------------------
Xx. Xxxxx Xxxxxxxxx, Director
Date:
-----------------------------------
And By:/s/ Xxxxxxxx Xxxxxx XxXxxx
------------------------------------
Xx. Xxxxxxxx Xxxxxx XxXxxx, Director
Date:
-----------------------------------
Symix Computer Systems (Hong Kong) Ltd.
By:
--------------------------------------------
------------------, Secretary, for and on
behalf of B. & McK. Nominees Limited in its
capacity as Secretary
Date:
-----------------------------------
And By:/s/ Xxxxxxxx X. XxXxxx
-----------------------------------
Xxxxxxxx X. XxXxxx, Secretary
Date:
-------------------------------------
Symix Computer Systems (Singapore) Pte. Ltd.
By:/s/ Xxxxxxxx X. Xxx
-----------------------------------
Xxxxxxxx X. Xxx, Director
Date:
-----------------------------------
And By:/s/ Xxxxxxxx X. XxXxxx
-----------------------------------
Xxxxxxxx X. XxXxxx, Director
Date:
-----------------------------------
Symix Computer Systems (Australia) Pty Ltd.
By:/s/ Xxxxxxxx X. Xxx
-----------------------------------
Xxxxxxxx X. Xxx, Director
Date:
-----------------------------------
And By:/s/ Xxxxxxxx X. XxXxxx
-----------------------------------
Xxxxxxxx X. XxXxxx, Secretary
Date:
-----------------------------------
Symix Computer Systems (Mexico) S. De X.X. De C.V.
By:/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx, Director
Date:
-----------------------------------
And By:/s/ Xxxxxxxx X. XxXxxx
-----------------------------------
Xxxxxxxx X. XxXxxx, Director
Date:
-----------------------------------
Symix Systems, B.V.
By:/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Managing Director
Date:
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Exhibit "A-2"
AMENDED AND RESTATED REVOLVING CREDIT NOTE
$6,000,000.00 Columbus, Ohio __________, 1997
On or before October 31, 1999, for value received, the undersigned promises to
pay to the order of Bank One, NA (hereinafter called "Bank One") the sum of Six
Million Dollars ($6,000,000.00) or such lesser portion thereof as may from time
to time be disbursed to, or for the benefit of the undersigned, with interest
(computed on the basis of the actual number of days elapsed divided by a year of
360 days) before maturity on the balance from time to time remaining unpaid at a
rate as provided in the Loan Agreement dated as of May 20, 1996 between the
undersigned and Bank One, as amended from time to time (the "Loan Agreement").
Interest shall be computed and payable quarterly beginning on June 30, 1996 and
continuing thereafter on the last day of each calendar quarter, and quarterly
until the maturity hereof. Both principal and interest are payable in lawful
money of the United States at the Main Office, Corporate Banking Division, Bank
One, NA, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000-0000.
The undersigned authorize(s) any Attorney-at-Law to appear for the undersigned
in an action on this promissory note, 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 undersigned,
and to confess judgment in favor of the legal holder of this promissory note
against the undersigned, for the amount that may be due, with interest at the
rate therein mentioned and cost 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.
This promissory note evidences a borrowing under and is entitled to the benefits
of the Loan Agreement. The principal may become due or may be declared
forthwith due and payable in the manner and upon the terms and conditions and
with the effect provided in the Loan Agreement.
THE UNDERSIGNED, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN BANK ONE AND THE UNDERSIGNED ARISING OUT OF, IN CONNECTION
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE
UNDERSIGNED AND BANK ONE IN CONNECTION WITH THIS PROMISSORY NOTE, THE LOAN
AGREEMENT, OR ANY OTHER AGREEMENT OR DOCUMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO. THIS WAIVER SHALL NOT
IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY BANK ONE'S ABILITY TO PURSUE
REMEDIES PURSUANT TO ANY CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED
IN THIS PROMISSORY NOTE OR ANY OTHER DOCUMENT RELATED HERETO.
--------------------------------------------------------------------------------
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.
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Symix Systems, Inc.
By:
---------------------------------------
Xxxxxxxx X. XxXxxx, Its Vice President,
Chief Financial Officer and Secretary
Date:
-----------------------------------
Symix Computer Systems, Inc.
By:
---------------------------------------
Xxxxxxxx X. XxXxxx, Its Vice President,
Chief Financial Officer and Secretary
Date:
-------------------------------------
Exhibit "B-2"
AMENDED AND RESTATED TERM NOTE
$___________ Columbus, Ohio _________, 199_
FOR VALUE RECEIVED, the undersigned promises to pay to the order of Bank One, NA
(hereinafter called "Bank One") the sum of _________________________________
Dollars ($______________), with interest (computed on the basis of the actual
number of days elapsed divided by a year of 360 days) before maturity on the
balance from time to time remaining unpaid at a rate as provided in the Loan
Agreement dated as of May 20, 1996 between the undersigned and Bank One, as
amended from time to time (the "Loan Agreement"). Interest shall be payable on
_________________, 199__ and quarterly intervals thereafter. Both principal and
interest are payable in lawful money of the United States at the Main Office,
Corporate Banking Division, Bank One, NA, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000-0000.
The principal hereof shall be payable in consecutive quarterly installments of
_________________ Dollars ($_____________) each, the first of which shall be due
on December 31, 1999, and continuing on the same day of each succeeding calendar
quarter thereafter until October 31, 2004, at which time any remaining balance
of principal, together with all interest accrued thereon, shall be due and
payable.
The undersigned hereby authorize(s) any Attorney-at-Law to appear for the
undersigned, in an action on this promissory note, 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
undersigned and to confess judgment in favor of the legal holder of this
promissory note against the undersigned 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.
This promissory note evidences a borrowing under and is entitled to the benefits
of the Loan Agreement. The principal may become due or may be declared
forthwith due and payable in the manner and upon the terms and conditions and
with the effect provided in the Loan Agreement.
THE UNDERSIGNED, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN BANK ONE AND THE UNDERSIGNED ARISING OUT OF, IN CONNECTION
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE
UNDERSIGNED AND BANK ONE IN CONNECTION WITH THIS PROMISSORY NOTE, THE LOAN
AGREEMENT, OR ANY OTHER AGREEMENT OR DOCUMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO. THIS WAIVER SHALL NOT
IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY BANK ONE'S ABILITY TO PURSUE
REMEDIES PURSUANT TO ANY
CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN THIS PROMISSORY
NOTE OR ANY OTHER DOCUMENT RELATED HERETO.
--------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------
Symix Systems, Inc.
By:
----------------------------------------
Xxxxxxxx X. XxXxxx, Its Vice President,
Chief Financial Officer and Secretary
Date:
---------------------------------------
Symix Computer Systems, Inc.
By:
-----------------------------------------
Xxxxxxxx X. XxXxxx, Its Vice President,
Chief Financial Officer and Secretary
Date:
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