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Exhibit 10(v) to Annual Report on Form 10-K for Symix Systems, Inc.
FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT AMONG
SYMIX SYSTEMS, INC. and SYMIX COMPUTER SYSTEMS, INC.
AND
BANK ONE, NA
THIS FIRST AMENDMENT ("First Amendment") is executed June 27, 2000,
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 Amended
and Restated Loan Agreement dated as of May 18, 2000 (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 sell the assets of one of their
subsidiaries, extend the completion date of a required field audit and limit the
amount of investments they can make in third parties.
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 4.18 shall be amended and restated in its
entirety as follows:
4.18 Accounts Receivable Reporting. SCSI will furnish
to Bank One as soon as practicable after the end of
each calendar month, and in any event within 10 days
thereafter, a summary Accounts aging report in a
format acceptable to Bank One and a Borrowing Base
Certificate for such month. From time to time, SCSI
shall be required to deliver detailed aging
schedules, trial balances, test verifications of
Accounts and other reports reasonably requested by
Bank One. The Companies shall assist Bank One in the
completion (at a cost of $5,000 to the Companies) of
a field audit of the Accounts by August 31, 2000.
1.2. A new Section 5.16 shall be added to the Agreement as
follows:
5.16. Investments. The Companies and the Borrowers
will not make or permit to remain outstanding any
Investments (as defined below) except (a) operating
deposit accounts with Bank One and (b) Permitted
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Investments (as defined below). "Investment" in any
Person means: (a) the acquisition (whether for cash,
property, services or securities or otherwise) of
capital stock, bonds, notes, debentures, partnership
or other ownership interests or other securities of
such Person; and (b) any deposit with, or advance,
loan or other extension of credit to, such Person
(other than any such advance, loan or other extension
of credit having a term not exceeding 90 days
representing the purchase price of inventory or
supplies purchased in the ordinary course of
business), but specifically excluding guarantees.
"Permitted Investments" means any Investment of the
Companies and the Borrowers in any of the following
instruments: (a) marketable direct obligations issued
or unconditionally Guaranteed by the United States
Government or issued by any agency or instrumentality
thereof and backed by the full faith and credit of
the United States, in each case maturing within 270
days from the date of acquisition thereof; (b)
marketable general obligations issued by any state of
the United States of America or any political
subdivision of any such state or any public
instrumentality thereof maturing within 270 days from
the date of acquisition thereof, having one of the
two highest ratings generally obtainable from
Standard & Poor's Corporation (or its successor) or
Moody's Investors Service, Inc. (or its successor);
(c) commercial paper maturing within 270 days from
the date of acquisition thereof and, at the time of
acquisition, rated A-1 (or the equivalent) or better
by Standard & Poor's Corporation (or its successor)
or P-1 (or the equivalent) or better by Moody's
Investors Service, Inc. (or its successor); (d)
operating deposit accounts, deposits maturing on
demand or certificates of deposit or bankers'
acceptances maturing on demand or within 270 days
from the date of acquisition thereof issued by Bank
One or any other commercial bank organized under the
laws of the United States or any state thereof or the
District of Columbia having a combined capital,
surplus and undivided profits of at least
$250,000,000; (e) repurchase obligations issued by
Bank One or any other bank described in clause (c)
above with respect to obligations described in clause
(a) above, (f) zero coupon bonds issued or
unconditionally guaranteed by the United States
Government or issued by any agency or instrumentality
thereof and backed by the full faith and credit of
the United States; (g) any Investment owned by the
Company as of the date of this Agreement; (h)
Investments in third Persons in an aggregate amount
not to exceed $2,000,000; (i) loans and advances to
officers and directors of the Companies or any
Subsidiaries (or employees thereof provided such
loans and advances are approved by an officer of one
of the Companies) for travel, entertainment and
relocation expenses in the ordinary course of
business; (j) loans and advances to and Investments
in Subsidiaries; (k) Investments in notes and other
securities received in settlement of overdue debts
and accounts payable in the ordinary course of
business and for amounts which are not, individually
or in the aggregate, material to the Companies and
the Borrowers taken as a whole; and (l) the renewal
of any Investment owned by the Companies or the
Borrowers as of the date of this Agreement on similar
terms.
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1.3. Bank One hereby consents to the sale of the assets of
Visual Applications Software, Inc., an Ontario corporation ("VAS") by
the Companies and hereby agrees that the term "Borrowers" in the
Agreement shall be amended and restated in its entirety as follows:
"Borrowers" means the Companies and Symix Systems
Ontario, Inc., an Ontario corporation or any
successor corporations.
1.4. In Section 7, the term "Guarantors" shall be deleted and
replaced in its entirety as follows:
"Guarantors" shall mean 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.; Frontstep,
Inc.; brightwhite solutions, inc.; and Symix Computer
Systems (Mexico) S. DeR.L. De C.V.
SECTION 2. GOVERNING LAW. This First 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 First Amendment shall be paid by the Companies on
request.
SECTION 4. COUNTERPARTS. This First 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 First 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 First Amendment or the party entitled to the benefits of this
First 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.
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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. [Intentionally Omitted}
6.2. The Borrowers shall execute the revised $2,000,000
Revolving Credit Note attached hereto as Exhibit A-2(2).
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 First 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.
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The Companies have executed this First Amendment as of the date first
above written.
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SYMIX SYSTEMS, INC. SYMIX COMPUTER SYSTEMS, INC.
By: /s/ Lawrence W. DeLeon By: /s/ Lawrence W. DeLeon
------------------------------------------- ---------------------------------------------
Name: Lawrence W. DeLeon Name: Lawrence W. DeLeon
Its: Vice President, Chief Financial Officer Its: Vice President, Chief Financial Officer
and Secretary and Secretary
</TABLE>
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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 GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
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BANK ONE, NA
By: /s/ Michael R. Zaksheske
--------------------------
Name: Michael R. Zaksheske
Its: Vice President
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EXHIBIT A-2(2)
SECOND AMENDED AND RESTATED REVOLVING CREDIT NOTE
================================================================================
$2,000,000 Columbus, Ohio
June 27, 2000
================================================================================
On or before July 1, 2001, for value received, the undersigned, SYMIX
SYSTEMS, INC., an Ohio corporation ("SSI"), SYMIX COMPUTER SYSTEMS, INC., an
Ohio corporation ("SCSI") and SYMIX SYSTEMS ONTARIO, INC., an Ontario
corporation ("SSO") (individually, a "Borrower" and, collectively, the
"Borrowers") hereby promise to pay to the order of Bank One, NA, a national
association (the "Bank") or its assigns, as further provided herein, the
principal amount of Two Million Dollars ($2,000,000) or, if such principal is
less, the aggregate unpaid principal amount of all loans made by the Bank to the
Borrowers pursuant to the Credit Commitment less any amounts loaned to SSI and
SCSI (the "Companies") under the $13,000,000 Second Amended and Restated
Revolving Credit Note dated as of May 18, 2000 under the Agreement referred to
in Section 1 hereof, together with interest on the unpaid principal balance from
time to time outstanding hereunder until paid in full at the rates determined in
accordance with the provisions of Section 1.1.4 of the Agreement, payable as set
forth in the Agreement. Both principal and interest are payable in federal funds
or other immediately available money of the United States of America at the Main
Office of the Bank, 100 East Broad Street, Columbus, Ohio 43271-0170. Proceeds
from borrowings under this Amended and Restated Revolving Credit Note are to be
used solely to fund the operations of SSO and VAS, whether borrowed by VAS, SSO
or the Companies. This Second Amended and Restated Revolving Credit Note amends
and restates in its entirety the Amended and Restated Revolving Credit Note
dated as of May 18, 2000 issued by the Borrowers to the Bank.
SECTION 1. LOAN AGREEMENT. This Second Amended and Restated Revolving
Credit Note is the $2,000,000 Revolving Credit Note referred to in the Amended
and Restated Loan Agreement dated as of the date hereof (the "Agreement")
between the Companies and the Bank, as the same may be amended, modified or
supplemented from time to time, which Agreement, as amended, is incorporated by
reference herein. All capitalized terms used herein shall have the same meanings
as are assigned to such terms in the Agreement. This Second Amended and Restated
Revolving Credit Note is entitled to the benefits of and is subject to the
terms, conditions and provisions of the Agreement. The Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events, and also for repayments and reborrowings on
account of the principal hereof prior to maturity upon the terms, conditions and
provisions specified.
SECTION 2. WAIVER OF PRESENTMENT. The Borrowers hereby waive
presentment, demand, notice, protest, notice of protest, notice of dishonor and
all other demands and notices in connection with the delivery, acceptance,
performance and enforcement of this Second Amended and Restated Revolving Credit
Note.
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SECTION 3. CONFESSION OF JUDGMENT. The Borrowers hereby authorize any
attorney at law to appear for the Borrowers, in an action on this Second Amended
and Restated Revolving Credit 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 Borrowers and
to confess judgment in favor of the holder of this Second Amended and Restated
Revolving Credit Note against the Borrowers 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 Borrower
shall impair the Bank's right to receive a confession of judgment against any of
the remaining Borrowers.
SECTION 4. WAIVER OF JURY TRIAL. THE BANK AND THE BORROWERS HEREBY
VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE BANK AND THE BORROWERS ARISING OUT OF, IN CONNECTION
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE
BORROWERS AND THE BANK IN CONNECTION WITH ANY LOAN DOCUMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR THE TRANSACTIONS RELATED HERETO
OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK TO ENTER INTO
THE FINANCING TRANSACTIONS WITH THE BORROWERS. IT SHALL NOT IN ANY WAY AFFECT,
WAIVE, LIMIT, AMEND OR MODIFY THE BANK'S ABILITY TO PURSUE ITS REMEDIES
INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION OF JUDGMENT OR COGNOVIT PROVISION
CONTAINED HEREIN OR IN ANY OTHER DOCUMENT RELATED HERETO.
SECTION 5. NATURE OF OBLIGATIONS. The obligations of the Borrowers
hereunder (the "Obligations") are joint and several and a separate action or
actions may be brought and prosecuted against any Borrower regardless of whether
any action is brought against any other Borrower or whether the other Borrower
is joined in any such action(s). The Borrowers may be sued together or either of
them may be sued separately without first, contemporaneously or subsequently,
suing the other. The Bank may compromise with any of the Borrowers for less than
all of the amounts owing hereunder and under the Loan Documents and release any
of the Borrowers from all further liability to the Bank for the amounts owing
hereunder and under the Agreement all without impairing the rights of the Bank
to demand and collect the balance of the amounts owing hereunder and under the
Agreement from any other Borrower not so sued or released. There shall be no
duty or obligation of the Bank to exhaust any remedy in law or in equity against
any Borrower before bringing suit or instituting proceedings of any kind against
any other Borrower. The Borrowers and all sureties, endorsers and guarantors of
this Second Amended and Restated Revolving Credit Note (a) waive demand,
presentment for payment, notice of nonpayment, protest, notice of protest and
all other notices, filing of suit and diligence in collecting this Second
Amended and Restated Revolving Credit Note, (b) agree to any release of any
party primarily or secondarily liable thereon, and (c) consent to any extension
or postponement of time of payment of this Second Amended and Restated Revolving
Credit Note and to any other indulgence with respect hereto without notice
thereof to any of them.
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The Obligations hereunder are irrevocable and may only be discharged by
the full and timely payment of the amounts owing by the Borrowers hereunder and
thereunder and will not be discharged, released, altered or modified by any
other action or omission of any Person, on any one or more occasions, including,
without limitation (a) the amendment, modification or waiver of the Agreement or
any performance due hereunder or thereunder, (b) the impairment, grant,
exchange, release, surrender or disposal of any collateral, (c) the release or
discharge of a Borrower's Obligations, (d) the existence or assertion by any
Borrower of any personal defense to its obligations including, without
limitation, bankruptcy, (e) the exercise, pursuit or waiver of any right or
remedy that the Bank may have at any time, (f) the Bank's failure to give notice
to any Borrower of the occurrence of any default in any Borrower's performance
hereunder or under the Agreement, (g) the taking or omission to take any action
hereunder or under the Agreement, (h) the Bank's release or discharge of any
guaranty or accommodation with respect to the Obligations, (i) the impossibility
or illegality of performance by the Borrowers or (j) any change in the corporate
organization of the Bank.
If any Borrower at any time shall pay any sums on account of any
Obligation or take any other action in performance of any Obligation, such
Borrower shall be subrogated to the rights, powers, privileges and remedies of
the Bank in respect of such Obligation; provided that all such rights of
subrogation and all claims and indebtedness arising therefrom shall be, and the
Borrower hereby agrees that the same are, and shall be at all times, in all
respects subordinate and junior to the Banks claims for all the Obligations, and
provided, further, that the Borrower hereby agrees that it shall not seek to
exercise any such rights of subrogation, reimbursement, exoneration, or
indemnity whatsoever or any rights of recourse to any security for any of the
Obligations unless or until all the Obligations shall have been indefeasibly
paid in full. The waivers, representations, warranties, covenants and agreements
contained in this paragraph are for the benefit of and may be enforced by the
Bank and such Borrower and their respective successors and assigns, including
without limitation any trustee in bankruptcy of such Borrower.
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The undersigned executed this Second Amended and Restated Revolving
Credit Note as of the day and year first set forth above.
SYMIX SYSTEMS ONTARIO, INC.
By: /s/ Lawrence W. DeLeon
Name: Lawrence W. DeLeon
----------------------------------------
Its: Vice President, Chief Financial 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 GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
--------------------------------------------------------------------------------
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<S> <C>
SYMIX COMPUTER SYSTEMS, INC. SYMIX SYSTEMS, INC.
By: /s/ Lawrence W. DeLeon By: /s/ Lawrence W. DeLeon
----------------------------------------- ------------------------------------------
Name: Lawrence W. DeLeon Name: Lawrence W. DeLeon
Its: Vice President, Chief Financial Officer Its: Vice President, Chief Financial Officer
and Secretary and Secretary
</TABLE>
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