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EXHIBIT 10
SIXTH AMENDMENT TO LOAN AGREEMENT AMONG
SYMIX SYSTEMS, INC. and SYMIX COMPUTER SYSTEMS, INC.
AND
BANK ONE, NA
THIS SIXTH AMENDMENT ("Sixth Amendment") is executed November 19 ,
1999, effective as of June 29, 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, further amended by Fourth Amendment dated as of
December 24, 1998 and further amended by Fifth Amendment dated as of June 10,
1999 (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;
WHEREAS, the Companies desire to create a new subsidiary, Symix
Computer Systems Delaware, Inc.
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 5.10 shall be amended and restated in its
entirety as follows:
5.10. Leverage Ratio. Companies shall not permit
the Consolidated Leverage Ratio to exceed the ratio of:
(a) 3.00 to 1.00 from the date of the Third
Amendment to June 29, 1998;
(b) 2.50 to 1.00 from June 30, 1998 until June
29, 2000; and
(c) 2.00 to 1.00 from June 30, 2000 and
thereafter.
1.2. The definition of "Guarantors" in Section 8 shall be
amended and restated in its entirety as follows:
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"Guarantors" shall mean Xxxxxxxx Corporation, Symix
xxxxxxxxxxxx.xxx, Inc., Symix Computer Systems (Canada), Inc.,
Symix (UK) Ltd., Symix Computer Systems (UK) Ltd., Symix
Systems B.V., Symix Computer Systems Delaware, Inc.,
e-Mongoose, Inc. and Symix Computer Systems (Mexico) S. De
X.X. De C.V.
SECTION 2. GOVERNING LAW. This Sixth 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 Sixth Amendment shall be paid by the Companies on
request.
SECTION 4. COUNTERPARTS. This Sixth 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 Sixth 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 Sixth Amendment or the party entitled to the benefits of this
Sixth 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 Sixth 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 Sixth Amendment or the transactions contemplated hereby.
6.2. Unconditional Continuing Guaranty of (a) Symix Computer
Systems Delaware, Inc., a Delaware corporation; (b) e-Mongoose, Inc., an Ohio
corporation; and (c) Symix xxxxxxxxxxxx.xxx, Inc., an Ohio corporation, each
accompanied by (i) certified copies of the resolutions of such corporation's
board of directors evidencing the authorization of the execution, delivery and
performance of such guaranty, (ii) certified articles (or certificate) of
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incorporation of such corporation from the state of its organization, (iii) good
standing certificates from Ohio and (if different) the state of such
corporation's organization and (iv) 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.
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 Sixth 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.
The Companies have executed this Sixth Amendment as of the date first
above written.
SYMIX SYSTEMS, INC. SYMIX COMPUTER SYSTEMS, INC.
By: /s/ Xxxxxxxx X. XxXxxx By: /s/ Xxxxxxxx X. XxXxxx
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Name: Xxxxxxxx X. XxXxxx Name: Xxxxxxxx X. XxXxxx
Its: Vice President, Chief Financial Its: Vice President, Chief Financial
Officer and Secretary Officer and Secretary
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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 GOOD FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT OR
ANY OTHER CAUSE.
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BANK ONE, NA
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Its: Vice President
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