Exhibit 10.16
LOAN AND NOTE MODIFICATION AGREEMENT
THIS LOAN AND NOTE MODIFICATION AGREEMENT (the "Amendment") is entered
into as of this 14th day of March, 2003, by and between XXXX XXXXX &
ASSOCIATES, INC., a Delaware corporation ("Company"), and COMMERCE BANK,
N.A., a national banking association ("Bank").
WHEREAS, (i) Company and Bank entered into that certain Line of Credit
Loan Agreement dated September 7, 1999, as amended June 6, 2000, June 15,
2001, December 15, 2001, and December 14, 2002 (collectively the "Loan
Agreement"), and (ii) Company executed and delivered to Bank that certain
Line of Credit Note of even date therewith in the aggregate principal amount
of $40,000,000, as amended June 6, 2000, June 15, 2001, and December 14,
2002 (collectively the "Note), in connection with the Loan Agreement; and
WHEREAS, Company and Bank desire to modify and amend certain provisions
of the Loan Agreement and the Note to extend the Termination Date.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Amendments of the Loan Agreement. The Loan Agreement is hereby
amended as follows:
(a) Section 1.1 of the Loan Agreement is amended and restated to
read as follows:
1.1 Line of Credit. Subject to the terms of this
Agreement, Bank shall lend Company from time to
time until the termination hereof, such sums as
Company may request, but which shall not exceed the
aggregate principal amount of Fifty Million and
No/100 Dollars ($50,000,000) from September 15,
2000 to, but not including, December 14, 2003,
unless renewed by written agreement between Bank
and Company (the "Termination Date"). In addition
to the foregoing, the Line of Credit shall be
deemed to automatically terminate if the occurrence
of an Event of Default (as defined under Article V
hereof) causes the principal balance and all
accrued interest under the Line of Credit Note (as
defined in Section 1.2) to become immediately due
and payable.
2. Amendment of the Note. The last sentence of the second paragraph
of the Note is amended and restated to read as follows:
All outstanding principal and any unpaid interest thereon
under this Line of Credit Note is due and payable on December
14, 2003.
3. Representations and Warranties. Company hereby represents and
warrants to Bank as follows:
(a) No default currently exists under the Loan Agreement, the Note
or the other Loan Documents and no event has occurred which with the
passage of time or the giving of notice, or both, would constitute a
default under the Loan Documents.
(b) The Certificate of Incorporation and Bylaws of Company, the
Articles of Incorporation or Certificate of Limited Partnership, as
applicable, for each Guarantor, and the Bylaws or Partnership
Agreement, as applicable, for each Guarantor have in each case not been
amended, modified or supplemented since September 7, 1999.
(c) All of the representations and warranties made by Company in
the Loan Documents are true as if made on the date hereof.
4. Conditions Precedent. Closing of this Amendment and the
transactions contemplated hereunder is conditioned on the following:
(a) Receipt by Bank of Certificates of Good Standing, dated not
more than ten (10) days prior to the date of this Amendment for Company
and each Guarantor from their respective states of organization.
(b) An opinion of counsel to Company and the Guarantors, with
respect to such matters as requested by Bank.
(c) Certified copies of each resolution of (i) Company's Board of
Directors duly authorizing the execution and delivery of this Amendment
and the consummation of the transactions contemplated herein and (ii)
each Guarantor's Board of Directors approving this Amendment and the
consummation of the transactions contemplated herein.
(d) Receipt by Bank of each Acknowledgement and Consent attached
hereto, executed by each of the Guarantors.
(e) Any other documents, instruments and reports as Bank shall
reasonably request.
5. Interpretation. From and after the execution of this Amendment by
all of the parties hereto, all references in the Loan Agreement, the Note,
the Guaranty and the other Loan Documents to "this Agreement," "hereof,"
"herein," and similar terms shall mean or refer to such Loan Documents as
amended by this Amendment, and all references in other Loan Documents to
such documents shall mean such Loan Documents as amended by this Amendment.
Unless otherwise specifically defined herein, all defined terms shall have
the meaning given them in the Loan Agreement. Section headings are inserted
in this Amendment for convenience of reference only and shall not be used in
the interpretation of this Amendment.
6. Ratification. Unless specifically amended or modified by the terms
of this Amendment, all other terms of the Loan Agreement, the Note and the
other Loan Documents shall remain unchanged and in full force and effect and
are hereby ratified and confirmed.
7. Counterparts. This Amendment may be executed in counterparts, which
when taken together, shall constitute one and the same document.
8. Statutory Notice. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY,
EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING
PROMISES TO EXTEND OR RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT YOU
(BORROWER) AND US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING,
WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US
EXCEPT AS WE MAY LATER AGREE IN WRITING.
BY SIGNING BELOW, YOU AND WE AGREE THAT THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN US.
9. Waiver of Jury Trial. COMPANY HEREBY WAIVES TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO WHICH COMPANY AND BANK MAY BE PARTIES ARISING OUT
OF, IN CONNECTION WITH, OR IN ANY WAY PERTAINING TO, THIS AMENDMENT, THE
LOAN AGREEMENT, THE NOTE AND ANY OTHER LOAN DOCUMENT. IT IS AGREED AND
UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL
CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS
AGAINST PARTIES WHO ARE NOT PARTIES TO THIS AGREEMENT. THIS WAIVER IS
KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY COMPANY, AND COMPANY HEREBY
REPRESENTS THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY
INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR
NULLIFY ITS EFFECT. COMPANY FURTHER REPRESENTS AND WARRANTS THAT IT HAS BEEN
REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS
WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE
REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND
THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers on the day and year first above
written.
XXXX XXXXX & ASSOCIATES, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
COMMERCE BANK, N.A.
By: /s/ Xxx XxXxxxxx
----------------
Name: Xxx XxXxxxxx
Title: Senior Vice President
GUARANTOR'S ACKNOWLEDGEMENT AND CONSENT
The undersigned has heretofore executed and delivered to Bank a
Guaranty dated September 7, 1999, and hereby consents to the Loan and Note
Modification Agreement as set forth above, including without limitation the
extension of the Termination Date, and, subject to such Amendment, confirms
that the Guaranty and all of the undersigned's obligations thereunder remain
in full force and effect. The undersigned further agrees that its consent
to any further amendments to the Loan Agreement shall not be required as a
result of this consent having been obtained.
OPEN SYSTEMS GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer and Treasurer
GUARANTORS' ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned has heretofore executed and delivered to
Bank a Guaranty dated July 20, 2000, and hereby consents to the Loan and
Note Modification Agreement as set forth above, including without limitation
the extension of the Termination Date, and, subject to such Amendment,
confirms that the Guaranty and all of the undersigneds' obligations
thereunder remain in full force and effect. Each of the undersigned further
agrees that its consent to any further amendments to the Loan Agreement
shall not be required as a result of this consent having been obtained.
SYS-TECH, INC. OF KANSAS
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer and Treasurer
SYMITAR SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer and Treasurer
XXXX XXXXX, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer and Treasurer
XXXX XXXXX SYSTEMS, L.P.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer and Treasurer
XXXX XXXXX SOFTWARE/COMMLINK L.P.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer and Treasurer
XXXX XXXXX SERVICES L.P.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer and Treasurer
