Exhibit 10(f)
NINTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
NINTH AMENDMENT dated as of December 18, 2002 (this "Amendment")
to the LOAN AND SECURITY AGREEMENT dated as of July 17, 2001, as amended by the
First Amendment dated as of November 15, 2001, the Second Amendment dated as of
February 14, 2002, the Third Amendment dated as of May 13, 2002, the Fourth
Amendment dated as of July 9, 2002, the Fifth Amendment dated as of July 31,
2002, the Sixth Amendment, dated as of September 10, 2002, the Seventh
Amendment, dated as of September 30, 2002 and the Eighth Amendment, dated as of
November 24, 2002 (as so amended, the "Loan Agreement"), among, on the one hand,
the lenders identified on the signature pages thereof (such lenders, together
with their respective successors and assigns, are referred to hereinafter each
individually as a "Lender" and collectively as the "Lenders"), FOOTHILL CAPITAL
CORPORATION, a California corporation, as the arranger and administrative agent
for the Lenders ("Agent"), and, on the other hand, FRONTSTEP, INC., an Ohio
corporation ("Parent"), and each of the Parent's Subsidiaries identified on the
signature pages hereof (such Subsidiaries, together with Parent, are referred to
hereinafter each individually as a "Borrower", and individually and
collectively, jointly and severally, as "Borrowers").
WHEREAS, the Borrowers and the Agent, on behalf of the Lenders,
wish to amend the Loan Agreement to correct certain inconsistencies.
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. Letter of Credit Usage Limit. Section 2.12(a)(ii) of the
Loan Agreement is hereby amended by deleting the dollar figure "$2,000,000" set
forth therein and substituting therefor the dollar figure "$1,500,000".
3. Lenders' Commitment Schedule. Schedule C-1 to the Loan
Agreement is hereby amended in its entirety to read as set forth in Annex I to
this Amendment.
4. Conditions. 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) Representations and Warranties; No Event of
Default. The representations and warranties contained herein, in Section 5 of
the Loan Agreement and in each other Loan Document and certificate or other
writing delivered to the Agent and the Lenders pursuant hereto on or prior to
the Amendment Effective Date shall be correct in all material respects on and as
of the Amendment Effective Date as though made on and as of such date
(except to the extent that such representations and warranties expressly relate
solely to an earlier date in which case such representations and warranties
shall be true and correct on and as of such date), and no Default or Event of
Default shall have occurred and be continuing on the Amendment Effective Date or
would result from this Amendment becoming effective in accordance with its
terms, unless any such Event of Default has previously been waived in accordance
with Section 15 of the Loan Agreement.
(b) Delivery of Documents. The Agent shall have
received on or before the Amendment Effective Date the following, each in form
and substance reasonably satisfactory to the Agent and, unless indicated
otherwise, dated the Amendment Effective Date:
(i) counterparts of this Amendment, duly
executed by the Borrowers and the Agent; and
(ii) such other agreements, instruments,
approvals, opinions and other documents as the Agent may
reasonably request.
5. Representations and Warranties. Each of the Borrowers
represent and warrant as follows:
(a) Except as previously disclosed in writing to the
Agent: (i) the representations and warranties made by such Borrower herein, in
the Loan Agreement and in each other Loan Document and certificate or other
writing delivered to the Lenders on or prior to the Amendment Effective Date
shall be correct and accurate on and as of the Amendment Effective Date as
though made on and as of such date (except to the extent that such
representations and warranties expressly relate solely to an earlier date in
which case such representations and warranties shall be true and correct on and
as of such date); and (ii) no Default or Event of Default shall have occurred
and be continuing on the Amendment Effective Date or would result from this
Amendment becoming effective in accordance with its terms.
(b) Each of the Borrowers (i) is a corporation, duly
organized, validly existing and in good standing under the laws of its state of
organization, (ii) has all requisite power and authority to execute, deliver and
perform this Amendment, and to perform the Loan Agreement, as amended hereby,
and (iii) is duly qualified to do business and is in good standing in each
jurisdiction where the failure to be so qualified and in good standing
reasonably could be expected to have a Material Adverse Change.
(c) The execution, delivery and performance by each
Borrower of this Amendment, and the performance by each such Borrower of the
Loan Agreement, as amended hereby, (i) have been duly authorized by all
necessary action, (ii) do not and will not contravene such Borrower's charter or
by-laws, any applicable law or any contractual restriction binding on or
otherwise affecting it or any of its properties, (iii) do not and will not
result in or require the creation of any lien or other encumbrance (other than
pursuant to any Loan Documents) upon or with respect to any of its properties,
and (iv) do not and will not result in any suspension, revocation, impairment,
forfeiture or nonrenewal of any permit, license, authorization or approval
applicable to its operations or any of its properties.
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(d) No authorization or approval or other action by,
and no notice to or filing with, any Governmental Authority or agency or other
regulatory body is required in connection with the due execution, delivery and
performance by such Borrower of this Amendment, or for the performance of the
Loan Agreement, as amended hereby.
(e) This Amendment, the Loan Agreement, as amended
hereby, and each other Loan Document to which such Borrower is a party is a
legal, valid and binding obligation of such Borrower, enforceable against such
Borrower in accordance with its terms, except as such enforceability may be
limited by equitable principles or by or subject to any bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally.
6. 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.
(b) The Borrowers 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 any
representation or warranty made by the Borrowers under or in connection with
this Amendment shall have been untrue, false or misleading in any material
respect when made or if Borrowers fail to perform any covenant contained in this
Amendment.
7. Costs and Expenses. The Borrowers shall pay all reasonable
out-of-pocket costs and expenses of the Lender Group (including, without
limitation, the reasonable fees and charges of counsel to any member of the
Lender Group) in connection with this Amendment.
8. 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. Delivery of an executed counterpart
of this Amendment by telefacsimile shall be equally as effective as delivery of
an original executed counterpart of this Amendment. Any party delivering an
executed counterpart of this Amendment by telefacsimile also shall deliver an
original executed counterpart of this Amendment but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and
binding effect of this Amendment.
(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.
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(c) This Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York except to the extent
governed by the Bankruptcy Code.
9. THE BORROWERS, 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.
FRONTSTEP, INC.
an Ohio corporation
By: /s/ DANIEL P. BUETTIN
--------------------------------------
Name: Daniel P. Buettin
Title: Vice President and Chief Financial
Officer
FRONTSTEP SOLUTIONS GROUP, INC.
an Ohio corporation
By: /s/ DANIEL P. BUETTIN
--------------------------------------
Name: Daniel P. Buettin
Title: Vice President and Chief Financial
Officer
FRONTSTEP CANADA, INC.
an Ontario corporation
By: /s/ DANIEL P. BUETTIN
--------------------------------------
Name: Daniel P. Buettin
Title: Vice President and Chief Financial
Officer
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent and as a Lender
By: /s/ TRENT A. SMART
--------------------------------------
Name: Trent A. Smart
Title: Vice President
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ANNEX I
SCHEDULE C-1
COMMITMENTS
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REVOLVER TERM LOAN A TERM LOAN B TERM LOAN C TOTAL
LENDER COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
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Foothill Capital $1,500,000 $15,000,000 $900,000 $650,000 $18,050,000
Corporation
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All Lenders $1,500,000 $15,000,000 $900,000 $650,000 $18,050,000
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