Exhibit 99.1
[Conformed Copy]
THIRD AMENDMENT TO
LOAN AND SECURITY AGREEMENT
---------------------------
THIRD AMENDMENT dated as of March 31, 2000 (this "Amendment") to the LOAN
AND SECURITY AGREEMENT dated as of August 11, 1999, as amended by the FIRST
AMENDMENT dated as of December 23, 1999 and the Second Amendment dated as of
January 28, 2000 (the "Loan Agreement") by and among SYSTEM SOFTWARE ASSOCIATES,
INC., a Delaware corporation (the "Borrower"), SYSTEM SOFTWARE ASSOCIATES
LIMITED, a corporation organized under the laws of England and Wales, SSA-
ACCLAIM LIMITED, a corporation organized under the laws of England and Wales,
SSA SOFTWRIGHT LIMITED, a corporation organized under the laws of England and
Wales, SSA CANADA CORPORATION, a corporation organized under the laws of Canada
(together with the Borrower, each an "Obligor" and collectively the "Obligors",
each of the financial institutions signatories hereto (such financial
institutions, together with their respective successors and assigns, each a
"Lender" and collectively, the "Lenders", and FOOTHILL CAPITAL CORPORATION, a
California corporation, as agent for the Lenders (in such capacity, the
"Agent").
WHEREAS, the Required Lenders have agreed to extend the date set forth in
Section 3.2(e) of the Loan Agreement, subject to the terms and conditions of
this Amendment.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and conditions hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Capitalized Terms. All capitalized terms used in this Amendment
(including, without limitation, in the recitals hereto) and not otherwise
defined shall have their respective meanings set forth in the Loan Agreement.
2. Amendment to Loan Agreement. The date set forth in Section 3.2(e) of
the Loan Agreement is hereby changed from "March 31, 2000" to "April 14, 2000".
3. Conditions Precedent. This Amendment shall become effective only upon
satisfaction in full of the following conditions precedent (the first date upon
which all such conditions have been satisfied being herein called the "Amendment
Effective Date"):
(a) Delivery of Documents. The Agent shall have received on or before
March 31, 2000 the following, each in form and substance satisfactory to the
Agent and, unless indicated otherwise, dated the Amendment Effective Date:
(i) counterparts of this Amendment, duly executed by the Obligors and
the Lenders, and of the reaffirmation and consent attached hereto as
Exhibit A-1, duly executed by an authorized officer of each Guarantor; and
(ii) such other agreements, instruments, approvals, opinions and other
documents as the Agent may reasonably request.
(b) Proceedings. All proceedings in connection with the transactions
contemplated by this Amendment, and all documents incidental thereto, shall be
satisfactory to the Agent and its special counsel, and the Agent and such
special counsel shall have received all such information and such counterpart
originals or certified copies of documents, and such other agreements,
instruments, approvals, opinions and other documents, as the Agent or such
special counsel may reasonably request.
4. Release by Borrowers. (a) Definition of "Related Parties" and
"Claims". For purposes of this Section 4, "Related Parties" and "Claims" shall
be defined as follows:
"Related Parties" means, with respect to a party released, such
party's parents, subsidiaries, affiliates, successors, predecessors,
assigns, officers, directors, employees, agents, representatives,
attorneys, accountants and shareholders, if any.
"Claims" means any and all claims, losses, debts, liabilities,
demands, obligations, promises, acts, omissions, agreements, costs and
expenses, damages, injuries, suits, actions and causes of action,
including without limitation any and all rights of setoff, recoupment
or counterclaim, of any kind or nature whatsoever, in law or in
equity, known or unknown, suspected or unsuspected, contingent or
fixed.
(b) Release by Obligors. Excluding any continuing obligations of the
Lenders and the Agent under the express terms and provisions of the Loan
Agreement, the Loan Documents and this Amendment, each Obligor hereby releases,
acquits, and forever discharges the Lenders and the Agent, and each of them, as
well as their respective Related Parties, of and from any and all Claims arising
out of, related to or in any way connected with any action or failure to act,
prior to execution of this Amendment, in response to or in connection with any
events or circumstances arising under or otherwise related to the Loan Agreement
and the Loan Documents or any Defaults or Events of Default occurring under the
Loan Agreement.
5. Continued Effectiveness of the Loan Agreement. (a) Except as
otherwise expressly provided herein, the Loan Agreement and the other Loan
Documents are, and shall continue to be, in full force and effect and are hereby
ratified and confirmed in all respects, except that on and after the Amendment
Effective Date (i) all references in the Loan Agreement to "this Agreement",
"hereto", "hereof", "hereunder" or words of like import referring to the Loan
Agreement shall mean the Loan Agreement as amended by this Amendment and (ii)
all references in the other Loan Documents to the "Loan Agreement", "thereto",
"thereof", "thereunder" or words of like import referring to the Loan Agreement
shall mean the Loan Agreement as amended by this Amendment.
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(b) The Obligors hereby acknowledge and agree that this Amendment
constitutes a "Loan Document" under the Loan Agreement. Accordingly, it shall be
an Event of Default under the Loan Agreement if (i) any representation or
warranty made by the Obligors under or in connection with this Amendment shall
have been untrue, false or misleading in any material respect when made, or (ii)
the Obligors shall fail to perform or observe any term, covenant or agreement
contained in this Amendment.
6. Costs and Expenses. The Obligors shall pay all out-of-pocket costs and
expenses of the Lender Group (including, without limitation, the reasonable fees
and service charges of counsel to any member of the Lender Group) in connection
with this Amendment.
7. Miscellaneous. (a) This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) This amendment shall be governed by, and construed in accordance
with, the laws of the State of New York.
8. THE OBLIGORS, LENDERS AND THE AGENT EACH HEREBY IRREVOCABLY WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT OR
THE ACTIONS OF THE LENDER GROUP IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE
OR ENFORCEMENT HEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
SYSTEM SOFTWARE ASSOCIATES, INC., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: V.P. Finance and Controller
SYSTEM SOFTWARE ASSOCIATES LIMITED, a
corporation organized under the laws of England
and Wales
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title:
SSA-ACCLAIM LIMITED, a corporation organized
under the laws of England and Wales
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
SSA SOFTWRIGHT LIMITED, a corporation organized
under the laws of England and Wales
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
SSA CANADA CORPORATION, a corporation organized
under the laws of Canada
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
4
FOOTHILL CAPITAL CORPORATION,
as Agent and as a Lender
By: /s/ Xxxx Xxxxxx
---------------
Name: Xxxx Xxxxxx
Title:
ABLECO FINANCE LLC,
as a Lender
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title:
A2 FUNDING LP,
as a Lender
By: A2 Fund Management LLC,
its General Parter
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title:
5
Exhibit A-1
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REAFFIRMATION AND CONSENT
All capitalized terms used herein but not otherwise defined herein
shall have the meanings ascribed to them in that certain Third Amendment to Loan
and Security Agreement, dated as of March 31, 2000 (the "Amendment"). The
undersigned hereby (a) represents and warrants to the Lender Group that the
execution, delivery, and performance of this Reaffirmation and Consent are
within its corporate powers, have been duly authorized by all necessary
corporate action, and are not in contravention of any law, rule, or regulation,
or any order, judgment, decree, writ, injunction, or award of any arbitrator,
court, or governmental authority, or of the terms of its charter or by laws, or
of any contract or undertaking to which it is a party or by which any of its
properties may be bound or affected; (b) consents to the amendment of the Loan
Agreement by the Amendment; (c) acknowledges and reaffirms its obligations owing
to the Lender Group under the Guaranty and any other Loan Documents to which it
is a party; and (d) agrees that each of the Guaranty and any other Loan
Documents to which it is a party is and shall remain in full force and effect.
Although the undersigned has been informed of the matters set forth herein and
has acknowledged and agreed to same, it understands that the Lender Group has no
obligations to inform it of such matters in the future or to seek its
acknowledgement or agreement to future amendments, and nothing herein shall
create such a duty. Delivery of an executed counterpart of this Reaffirmation
and Consent by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Reaffirmation and Consent. Any party
delivering an executed counterpart of this Reaffirmation and Consent by
telefacsimile also shall deliver an original executed counterpart of this
Reaffirmation and Consent but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Reaffirmation and Consent. This Reaffirmation and Consent shall be governed
by the laws of the State of New York, as more fully set forth in Section 20 of
the Guaranty.
SYSTEM SOFTWARE ASSOCIATES LIMITED, a corporation
organized under the laws of England and Wales
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
SSA-ACCLAIM LIMITED, a corporation organized
under the laws of England and Wales
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
SSA SOFTWRIGHT LIMITED, a corporation organized
under the laws of England and Wales
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
SSA CANADA CORPORATION, a corporation organized
under the laws of Canada
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
SYSTEM SOFTWARE ASSOCIATES IBERICA S.A., a
corporation organized under the laws of Spain
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
SSA SYSTEM SOFTWARE ASSOCIATES GmbH, a
corporation organized under the laws of Germany
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
2
SSA ITALIA SPA, a corporation organized under
the laws of Italy
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
SSA BENELUX B.V., a corporation organized under
the laws of the Netherlands
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
SYSTEM SOFTWARE ASSOCIATES ASIA
PACIFIC PTE LTD, a corporation organized under
the laws of Singapore
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
SSA PACIFIC PTY LIMITED, a corporation
organized under the laws of Australia
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
SSA PACIFIC (NZ) LIMITED, a corporation
organized under the laws of New Zealand
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
3
SYSTEM SOFTWARE ASSOCIATES DO BRASIL LTDA., a
corporation organized under the laws of Brazil
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
SYSTEM SOFTWARE ASSOCIATES INC. de
MEXICO, S.A. de C.V., a corporation organized
under the laws of Mexico
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
SSA JAPAN CORPORATION, a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
SSA PACIFIC RIM CORPORATION, a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
SYSTEM SOFTWARE ASSOCIATES (JAPAN) LLC,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:
4
