December 28, 2000
Transaction Systems Architects, Inc.
000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxxxx Xxxx
Controller
Re: Amendment to Facility Letter dated June 16, 2000 between
Xxxxx Fargo Bank Nebraska, National Association, formerly
known as Norwest Bank Nebraska, N.A. (the "Bank"), and
Transaction Systems Architects, Inc. ("TSA") and ACI
Worldwide Inc. ("ACI") (hereinafter referred to individually
and collectively as the "Joint Borrowers")
Dear Xx. Xxxx:
Pursuant to our recent discussions, the Joint Borrowers and the Bank
agree to amend the Facility Letter to provide an interim, secured, committed
credit facility ("Interim Credit Facility"), the terms of the Interim Credit
Facility and the amendments to the Facility Letter are as follows:
1) Amount: The aggregate amount outstanding on the Interim Credit
Facility shall not exceed Five Million and
00/100 United States Dollars (USD)
($5,000,000.00) (hereinafter referred to as the
"Interim Credit Facility Amount") at any time,
which shall be available to the Joint Borrowers
in the form of loans (hereinafter referred to
as "Advance(s)").
2) Purpose: General corporate purposes, provided that the Joint
Borrowers will not use the proceeds of any
Advances extended under the Interim Credit
Facility for the purpose of purchasing or
carrying "margin stock" as defined in
Regulation U of the Board of Governors of the
Federal Reserve System.
3) Evidence of
Indebtedness: An Interim Promissory Note in the form of
Exhibit B attached hereto to be signed by the
Joint Borrowers (hereinafter referred to as the
"Interim Note"). The Interim Note and the
Promissory Note described in the Facility
Letter are individually and collectively
referred to herein and in the Facility Letter
as the "Note"). The indebtedness shall be the
joint and several obligation of TSA and ACI.
4) Expiration Date: The Interim Credit Facility shall expire on
March 31, 2001, upon which date the total
unpaid principal balance and all accrued but
unpaid interest shall be paid in full.
14) Representations: (k) Except for a portion of their
receivables which are factored
from time to time in the ordinary
course of business, none of the
assets of the Joint Borrowers are
subject to any mortgage, pledge,
title retention lien, or other
lien, encumbrance or security
interest, except for: (a) current
taxes not delinquent or taxes
being contested as provided by law
in good faith and by appropriate
legal proceedings; (b) liens
arising in the ordinary course of
business for sums not due or sums
being contested in good faith and
by appropriate legal proceedings,
but not involving any deposits or
advances of borrowed money or the
deferred purchase price of
property or services; and (c) to
the extent specifically shown in
the financial statement referred
to above. The Bank acknowledges
(i) that the Joint Borrowers and
Domestic Guarantors have
previously factored a portion of
their receivables, (ii) that the
Joint Borrowers and Domestic
Guarantors will factor a portion
of their receivables in the
future, and (iii) that the
foregoing actions will not
constitute a breach of any
representation, covenant or other
provision of this Facility Letter;
provided that the Joint Borrowers
shall be in compliance with the
covenant requiring a minimum
balance of eligible receivables
both before and after any such
factoring of $40,000,000 from the
date of this amendment to March
31, 2001, and thereafter of
$35,000,000, as set forth in
Section 15(j).
15) Covenants: (c) (vii) As soon as available and
in any event within 30
days after the end of
each month, an accounts
receivable report in form
and substance
satisfactory to the Bank,
containing sufficient
information to enable the
Bank to test compliance
by the Joint Borrowers
with Section 15(j).
(j) The Joint Borrowers shall maintain
a balance of eligible accounts
receivable (accounts receivable
that remain unpaid 90 days or less
after the date of invoice) at all
times of not less than Forty
Million and No/100 United States
Dollars (USD) ($40,000,000) in the
aggregate from the date of this
amendment to March 31, 2001, and
thereafter of not less than Thirty
Five Million and No/100 United
States Dollars (USD)
($35,000,000.00) in the aggregate.
Except as specifically amended herein, all of the terms of the
Facility Letter shall continue in full force and effect according to its
original terms, and are hereby ratified and confirmed in all respects.
Without limiting the generality of the preceding sentence, the Joint Borrowers
specifically ratify and confirm the security interest and first lien on the
accounts of the Joint Borrowers and the Domestic Guarantors given to the Bank
to secure the Obligations, including, without limitation, the Interim Note.
By their execution of this amendment to the Facility Letter, Joint Borrowers
hereby certify and warrant that each of the representations set forth in the
Facility Letter is true and correct as of the date hereof, and that the Joint
Borrowers are in full compliance with all of the terms and conditions of the
Facility Letter, as amended hereby, and no Event of Default, or any event or
condition, which, with the lapse of time, or giving of notice, or both, would
constitute an Event of Default, has occurred or is continuing. Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in the Facility Letter.
A credit agreement must be in writing to be enforceable under
Nebraska law. To protect you and us from any misunderstandings or
disappointments, any contract, promise, undertaking or offer to forbear
repayment of money or to make any other financial accommodation in connection
with this loan of money or grant or extension of credit, or of any amendment
of, cancellation of, waiver of, or substitution for any or all of the terms or
provisions of any instrument or document executed in connection with this loan
of money or grant or extension of credit, must be in writing to be effective.
This amendment to the Facility Letter shall become effective as of
the date set forth above when this letter amendment has been executed and
delivered by the Joint Borrowers and the Bank, the Joint Borrowers have
executed and delivered the Interim Promissory Note to the Bank and the
Guarantors have executed and delivered Guarantor's Consents to the Bank.
Furthermore, prior to borrowing under the Interim Credit Facility, the Joint
Borrowers and the Guarantors shall provide the Bank with satisfactory
corporate resolutions and incumbency certificates authorizing the execution
and delivery of this letter amendment, the Interim Promissory Note and the
Guarantor's Consents to the Bank.
Sincerely,
Xxxxx Xxxxxxxx
Vice President
Corporate Banking
Acknowledged and Agreed
as of December 28, 2000
TRANSACTION SYSTEMS ARCHITECTS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
By:
----------------------------
Title:
-------------------------
ACI WORLD WIDE INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
By:
---------------------------
Title:
------------------------
INTERIM PROMISSORY NOTE
USD $5,000,000.00 Dated: December 28, 2000
TRANSACTION SYSTEMS ARCHITECTS, INC. and ACI WORLDWIDE INC. (the
"Joint Borrowers"), jointly and severally, for value received, promise to pay
to the order of Xxxxx Fargo Bank Nebraska, National Association, formerly
known as Norwest Bank Nebraska, National Association (the "Bank"), in lawful
money of the United States at the principal office of the Bank in Omaha,
Nebraska, or as the Bank may otherwise direct, the lesser of the principal sum
of Five Million and 00/100 United States Dollars or the principal amount
outstanding, if any, under the letter agreement dated June 16, 2000, as
amended, between the Joint Borrowers and the Bank (the "Facility Letter"),
with interest (computed on actual days elapsed on the basis of a 360 day year)
on the principal amount outstanding hereunder as hereinafter set forth,
together with all costs of collection, including reasonable attorneys' fees,
upon default.
The unpaid principal balance of all loans ("Advances") hereunder
shall bear interest as follows:
(a) Base Rate: Before maturity of this Note,
and except for LIBOR Rate Advances, as hereafter defined,
at an annual rate equal to 0.75% below the Base Rate
adjusted at the time of changes in the Base Rate. "Base
Rate" shall mean the rate of interest established by Xxxxx
Fargo Bank Nebraska, National Association from time to time
as its "base" or "prime" or "Xxxxx Fargo Money Market
Rate." Interest shall be paid monthly at the end of each
month on any Advances made at the Base Rate. Advances made
at the Base Rate shall be made in the minimum principal
amount of $10,000.
(b) LIBOR Rate: LIBOR Rate is the rate at
which deposits in U.S. dollars in the amount and for a
maturity corresponding to that of any Advances made at the
LIBOR Rate ("LIBOR Rate Advances") are offered to the Bank
in the offshore inter-bank market at approximately 10:00
a.m., (London, England time), two business days prior to the
date on which such LIBOR Rate Advance is made, adjusted for
maximum statutory reserve requirements, plus 175 basis
points (1.75%) per annum.
LIBOR Rate Advances shall be for periods, at the
Joint Borrowers' option, of one (1), two(2) or three (3)
months (each, an "Interest Period"); provided, that the
Interest Period shall not extend beyond the Expiration
Date. Interest shall be payable at the maturity of each
Interest Period and shall be calculated on actual days
elapsed on a 360 day year.
With respect to the renewal of any LIBOR Rate Advance, or
any new borrowing hereunder, in the event that deposits in
the amount and for the term of the selected Interest Period
are unavailable to Bank, or that by reason or circumstances
affecting the inter-bank markets generally, adequate and
reasonable means do not exist for ascertaining the interest
rate applicable to such LIBOR Rate Advance for the selected
Interest Period, Joint Borrowers shall either repay such
LIBOR Rate Advance or direct Bank to convert such LIBOR Rate
Advance into an Advance of a type which is available on the
last day of the then current Interest Period, said choice
between repayment or conversion to be solely at Joint
Borrowers' option.
If it shall become unlawful (or contrary to any
direction from or requirement of any governmental authority
having jurisdiction over Bank) for Bank to continue to fund
or maintain any LIBOR Rate Advance or to perform its
obligations hereunder, then upon demand by Bank to Joint
Borrowers, such LIBOR Rate Advance or other obligation shall
thereupon be canceled and, if it is unlawful for Bank to
continue to fund or maintain any LIBOR Rate Advance, Joint
Borrowers shall prepay such LIBOR Rate Advance without
premium or penalty, together with accrued interest thereon,
on the last day of the then current Interest Period or on
such earlier date as may be required by law.
The Joint Borrowers may obtain multiple LIBOR Rate
Advances hereunder; provided, that each LIBOR Rate Advance
shall be in the minimum principal amount of $1,000,000 and
shall be payable in full, with interest thereon, at the
maturity of each LIBOR Rate Advance.
(c) Default Rate: After maturity, whether by
lapse of time, default, acceleration or otherwise, at a rate
equal to the Base Rate plus three percent (3%) per annum
(the "Default Rate").
Requests for Advances by the Joint Borrowers shall
be made by telephonic, telecopier or telex notice to the
Bank (which notice shall be promptly confirmed in writing)
by Xxxxxx Xxxx, Controller, or Xxxxx Xxxxxx, Senior
Financial Analyst, both of TSA, or such other person or
persons subsequently designated by the Joint Borrowers in
writing. Each request by Joint Borrowers for an Advance at
the Base Rate must be received by the Bank no later than
12:00 p.m. Omaha, Nebraska time, on the day on which it is
to be funded. Each request by Joint Borrowers for a LIBOR
Rate Advance must be received by the Bank no later than
11:00 a.m. Omaha, Nebraska time, on the day which is three
(3) business days prior to the day on which it is to be
funded. The Joint Borrowers agree that the Bank may rely on
any such telephonic, telecopier or telex notice given by any
person it in good faith believes is authorized to give such
notice without the necessity of independent investigation,
and in the event any notice by such means conflicts with the
written confirmation, such notice shall govern if the Bank
has acted in reliance thereon.
The principal balance of the LIBOR Rate Advances
may not be prepaid, in whole or in part, before the end of
any Interest Period. If, for any reason, a LIBOR Rate
Advance is paid prior to the last business day of any
Interest Period, the Joint Borrowers agree to indemnify the
Bank against any loss (including any loss on redeployment of
the funds repaid), cost or expense incurred by the Bank as a
result of such prepayment.
The total unpaid principal balance and all accrued
but unpaid interest on this Note shall be due and payable at
maturity on March 31, 2001 (the "Expiration Date").
The Bank, on the occurrence of any Event of Default under the
Facility Letter may, without notice, appropriate and apply toward the payment
of the outstanding balance of the Note, if not paid when due, or toward the
payment of outstanding sums due to the Bank under the Facility Letter, any
indebtedness of the Bank to the Joint Borrowers howsoever created or arising,
including, without limitation, any and all balances, credits, deposits,
accounts or monies of the Joint Borrowers.
All amounts outstanding under this Note shall become immediately due
and payable at the option of the Bank, without any demand or notice
whatsoever, in the event that (i) the Joint Borrowers shall fail to make any
payment when due of principal or interest on this Note or on any other
obligation of the Joint Borrowers to the Bank or (ii) any other Event of
Default shall occur under the Facility Letter. In addition, this and all
other obligations of the Joint Borrowers to the Bank shall be and become due
and payable immediately without any demand or notice whatsoever: (a) in the
event of any assignment for the benefit of creditors of the Joint Borrowers,
or the commencement of any bankruptcy, receivership, insolvency
reorganization, or liquidation proceedings by or against the Joint Borrowers;
or (b) the event of any garnishment, attachment, levy or lien being asserted
against any deposit balance maintained (or any property deposited) by the
Joint Borrowers with the Bank.
All Advances made by the Bank and all payments made by the Joint
Borrowers hereunder shall be recorded on the books and records of the Bank.
The Joint Borrowers agree that in any action or proceeding instituted to
collect or enforce collection of this Note, the amount endorsed on the
Schedule attached to this Note at that time or inscribed in such other records
of the Bank shall be prima-facie evidence of the unpaid principal balance of
this Note.
If any payment to be made by the Joint Borrowers hereunder shall
become due on a Saturday, Sunday or business holiday under Federal law or the
laws of the State of Nebraska, such payment shall be made on the next
succeeding business day and such extension of time shall be included in
computing any interest in respect of such payment.
If any change in any law, rule, regulation or directive (including,
without limitation, Regulation D of the Board of Governors of the Federal
Reserve System) imposes any condition the result of which is to increase the
cost to the Bank of making, funding or maintaining any LIBOR Rate Advance or
reduces any amount receivable by the Bank hereunder in connection with a LIBOR
Rate Advance, the Joint Borrowers shall pay the Bank the amount of such
increased expense incurred or the reduction in any amount received which the
Bank determines is attributable to making, funding and maintaining the LIBOR
Rate Advances.
The Bank may elect to sell participations in or assign its rights
under Advances. The Joint Borrowers agree that if they fail to pay any
Advance when due, any purchaser of an interest in such Advance shall be
entitled to seek enforcement of this Note if the purchaser is permitted to do
so pursuant to the terms of the participation agreement between the Bank and
such purchaser.
The Joint Borrowers hereby authorize the Bank and any other holder of
an interest in this Note (a "holder") to disclose confidential information
relating to the financial condition or operations of the Joint Borrowers (i)
to any affiliate of the Bank or any holder, (ii) to any purchaser or
prospective purchaser of an interest in any Advance, (iii) to legal counsel,
accountants, and other professional advisors to the Bank or any holder, (iv)
to regulatory officials, (v) as requested or required by law, regulation, or
legal process or (vi) in connection with any legal proceeding to which the
Bank or any other holder is a party; provided:
(A) in the case of disclosures pursuant to (i), (ii) and (iii)
above, the Bank shall have first received from each such
disclosee, a written agreement to maintain such confidential
information in strict confidence and;
(B) in the case of disclosures pursuant to (iv), (v) and (vi)
above, the Bank shall have given TSA reasonable notice so as
to afford TSA an opportunity to secure protection of the
confidential information.
The Joint Borrowers hereby indemnify the Bank against any loss
(including any loss on redeployment of funds prepaid), cost or expense
incurred by the Bank as a result of a default hereunder or under the Facility
Letter or acceleration of this Note and all Advances evidenced hereby,
including, without limitation, all court costs, reasonable attorneys' fees and
other costs of collection.
This Note is executed in conjunction with the Facility Letter and is subject
to all of the terms and conditions contained therein. THIS NOTE SHALL BE
GOVERNED BY THE INTERNAL LAW (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
NEBRASKA, GIVING EFFECT, HOWEVER, TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS. THE JOINT BORROWERS AND THE BANK EACH HEREBY WAIVE TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF RELATED TO,
OR CONNECTED WITH THIS NOTE OR THE RELATIONSHIP ESTABLISHED HEREUNDER.
TRANSACTION SYSTEMS ARCHITECTS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
Its: Chief Financial Officer
By:
----------------------------
Its:
-------------------------
ACI WORLDWIDE INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
Its: Chief Financial Officer
By:
---------------------------
Its:
------------------------
SCHEDULE
to be attached and become a part of the Interim Promissory Note
dated December 28, 2000 executed by Transaction Systems Architects Inc.
and ACI Worldwide Inc. as "Joint Borrowers" and payable to
Xxxxx Fargo Bank Nebraska, National Association
Unpaid Initials
Amount Principal of
Date Amount of Balance Person
of of Interest Principal of Making
Transaction Loan Maturity Rate Payment Note Notation
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