AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
AMENDMENT NO. 4
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment No. 4 dated as of May 1, 2019 (this “Amendment”), is entered into by and between NIC INC., a Delaware corporation, as the Borrower (the “Borrower”), and Bank of America, N.A., a national banking association, as Bank and Letter of Credit Issuer (the “Bank”).
RECITALS
A. The Borrower and the Bank have entered into that certain Amended and Restated Credit Agreement dated as of August 6, 2014 as amended by that Amendment No. 1 dated July 9, 2015 and that Amendment No. 2 dated December 14, 2015 and that Amendment No. 3 dated April 28, 2017 (as further amended from time to time, the “Credit Agreement”).
B. The Borrower and the Bank have agreed to certain amendments to the Credit Agreement as more fully described herein.
C. The Amendment is subject to the representations and warranties of the Borrower and upon the terms and conditions set forth in this Amendment.
AGREEMENT
Now, THEREFORE, in consideration of the foregoing Recitals, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the Borrower and the Bank hereby agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used herein but not otherwise defined herein shall have the meaning assigned to such terms in the Credit Agreement.
SECTION 2. AMENDMENT.
2.1Section 1.01 of the Credit Agreement is hereby amended by deleting the defined term “Applicable Rate” in its entirety.
2.2Section 1.01 of the Credit Agreement is hereby amended by amending and restating the defined term “Maturity Date” to read in its entirety as follows:
“Maturity Date” means May 1, 2021; provided, however, that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.”
2.3Section 1.01 of the Credit Agreement is hereby amended by amending and restating the defined term “Permitted Acquisition” to read in its entirety as follows:
““Permitted Acquisition” means an Acquisition by the Borrower or any other Loan Party of Persons and/ or assets where (i) no Default or Event of Default exists either before or after the proposed Permitted Acquisition, and (ii) the Persons or assets to be acquired are in (or used in) a business substantially related or incidental to those lines of business conducted by the Borrower and its Subsidiaries and the prior, effective written consent or approval of such Acquisition by the board of
NIC Inc. - Amendment No. 4 to Amended and Restated Credit Agreement
directors, executive committee or equivalent governing body, or the stockholders, as appropriate, of the other party or parties has been obtained, and would not be perceived by the Person or assets to be acquired as hostile in nature; provided, that, without the prior written consent of the Bank, the purchase price of any Acquisition (including assumed liabilities in connection with such Acquisition) will not exceed $10,000,000, and the aggregate purchase price of all Acquisitions until the Maturity Date (including assumed liabilities in connection with such Acquisitions) will not exceed $50,000,000.”
2.4Section 2.04(a) of the Credit Agreement is hereby amended by deleting Section 2.04(a) in its entirety and replacing it with the following:
“(a) The interest rate is a rate per year equal to (i) the LIBOR Daily Floating Rate plus 1.15% with respect to any LIBOR Daily Floating Rate Loan, or (ii) the LIBOR Rate plus 1.15% with respect to any LIBOR Rate Loan.”
2.5Section 5.13 of the Credit Agreement is hereby amended by inserting the additional subsection (c) to read as follows:
“(c) No Plan Assets. The Borrower represents that, as of the date hereof and throughout the term of this Agreement, no Borrower or Guarantor, if any, is (1) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (2) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986 (the “Code”); (3) an entity deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA or the Code; or (4) a “governmental plan” within the meaning of ERISA.”
SECTION 3. LIMITATIONS ON AMENDMENTS.
3.1The amendments set forth in Section 2 above are effective for the purposes set forth herein and will be limited precisely as written and will not be deemed to (a) be a consent to any other amendment, waiver or modification of any other term or condition of the Credit Agreement or any other Loan Document, (b) otherwise prejudice any right or remedy which the Bank may now have or may have in the future under or in connection with the Credit Agreement or any other Loan Document or (c) be a consent to any future amendment, waiver or modification of any other term or condition of the Credit Agreement or any other Loan Document.
3.2This Amendment is to be construed in connection with and as part of the Loan Documents and all terms, conditions, representations, warranties, covenants and agreements set forth in the Loan Documents, except as herein waived, are hereby ratified and confirmed and will remain in full force and effect.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to the Bank as follows:
4.1Immediately after giving effect to this Amendment, (a) the representations and warranties of (i) the Borrower contained in Article V of the Credit Agreement and (ii) each Loan Party contained in each other Loan Document, shall be true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date in all material respects, and (b) the representations and warranties contained in subsections (a) and (b) of Section 5.06 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.02 of the Credit Agreement.
NIC Inc. - Amendment No. 4 to Amended and Restated Credit Agreement
4.2Immediately after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.
SECTION 5. EXPENSES. The Borrower agrees to pay to the Bank upon demand, the amount of any and all out-of-pocket expenses, including the reasonable fees and expenses of its counsel, which the Bank may incur in connection with the preparation, documentation, and negotiation of this Amendment and all related documents.
SECTION 6. REAFFIRMATION. The Borrower hereby reaffirms its obligations under each Loan Document (as amended hereby) to which it is a party.
SECTION 7. EFFECTIVENESS. This Amendment will become effective as of the date hereof upon:
7.1the execution and delivery of this Amendment, whether the same or different copies, by the Borrower and Bank;
7.2a fully executed Joinder to Amended and Restated Continuing and Unlimited Guaranty, wether the same or different copies, by the Borrower, Guarantors and Bank; and
7.3an officer’s certificate for Borrower and each Guarantor.
SECTION 8. GOVERNING LAW. This Amendment will be governed by and will be construed and enforced in accordance with the laws of the State of Missouri applicable to agreements made and prepared entirely within such State; provided that the Bank shall retain all rights arising under federal law.
SECTION 9. CLAIMS, COUNTERCLAIMS, DEFENSES, RIGHTS OF SET-OFF. The Borrower hereby represents and warrants to the Bank that it has no knowledge of any facts that would support a claim, counterclaim, defense or right of set-off.
SECTION 10. COUNTERPARTS. This Amendment may be signed in any number of counterparts, and by different parties hereto in separate counterparts, with the same effect as if the signatures to each such counterpart were upon a single instrument. All counterparts will be deemed an original of this Amendment.
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NIC Inc. - Amendment No. 4 to Amended and Restated Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
BORROWER: NIC INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
BANK: BANK OF AMERICA, N.A.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President
NIC Inc. - Amendment No. 4 to Amended and Restated Credit Agreement
CONSENT TO AMENDMENT NO. 4
TO AMENDED AND RESTATED CREDIT AGREEMENT
Each of the undersigned is a Guarantor and party to that certain Amended and Restated Continuing and Unconditional Guaranty dated August 6, 2014 (the “Guaranty”) in favor of Bank of America, N.A. pursuant to which the Guarantors have guaranteed the obligations of NIC INC., a Delaware corporation, to Bank of America, N.A., as Bank and L/C Issuer pursuant to or in connection with that certain Amended and Restated Credit Agreement dated August 6, 2014 as amended by Amendment No. 1 dated July 9, 2015 and that Amendment No. 2 dated December 14, 2015 and that Amendment No. 3 dated April 28, 2017 (as further amended, supplemented or otherwise modified from time to time, the “Credit Agreement”) and the other Loan Documents (as defined in the Credit Agreement). Each of the Guarantors hereby consents to Amendment No. 4 to the Amended and Restated Credit Agreement dated as of May 1, 2019.
Each Guarantor hereby reaffirms its obligations under the Guaranty.
IN WITNESS WHEREOF, the Guarantors have caused this Consent to be executed as of May 1, 2019.
ALABAMA INTERACTIVE, LLC, an Alabama limited liability company
ARKANSAS INFORMATION CONSORTIUM, LLC, an Arkansas limited liability company
COLORADO INTERACTIVE, LLC, a Colorado limited liability company
CONNECTICUT INTERACTIVE, LLC, a Connecticut limited liability company
HAWAII INFORMATION CONSORTIUM, LLC, a Hawaii limited liability company
IDAHO INFORMATION CONSORTIUM, LLC, an Idaho limited liability company
INDIANA INTERACTIVE, LLC, an Indiana limited liability company
IOWA INTERACTIVE, LLC, an Iowa limited liability company
KANSAS INFORMATION CONSORTIUM, LLC, a Kansas limited liability company
KENTUCKY INTERACTIVE LLC, a Kentucky limited liability company
NIC Inc. - Amendment No. 4 to Amended and Restated Credit Agreement
LOUISIANA INTERACTIVE, LLC, an Louisiana limited liability company
MAINE INFORMATION NETWORK, LLC, a Maine limited liability company
MISSISSIPPI INTERACTIVE, LLC, a Mississippi limited liability company
MONTANA INTERACTIVE, LLC, a Montana limited liability company
NICUSA, Inc., a Kansas corporation
NIC FEDERAL, LLC, f/k/a NIC TECHNOLOGIES, LLC, a Kansas limited liability company
NEBRASKA INTERACTIVE, LLC, a Nebraska limited liability company
NEW JERSEY INTERACTIVE, LLC, a New Jersey limited liability company
NEW MEXICO INTERACTIVE, LLC, a New Mexico limited liability company
NIC SERVICES, LLC, a Colorado limited liability company
OKLAHOMA INTERACTIVE, LLC, an Oklahoma limited liability company
PENNSYLVANIA INTERACTIVE, LLC, a Pennsylvania limited liability company
RHODE ISLAND INTERACTIVE, LLC, a Rhode Island limited liability company
SOUTH CAROLINA INTERACTIVE, LLC, a South Carolina limited liability company
TEXAS NICUSA, LLC, a Texas limited liability company
UTAH INTERACTIVE, LLC, a Utah limited liability company
VERMONT INFORMATION CONSORTIUM, LLC, a Vermont limited liability company
NIC Inc. - Amendment No. 4 to Amended and Restated Credit Agreement
VIRGINIA INTERACTIVE, LLC, a Virginia limited liability company
WEST VIRGINIA INTERACTIVE, LLC, a West Virginia limited liability company
WISCONSIN INTERACTIVE NETWORK, LLC, a Wisconsin limited liability company
By: /s/ Xxxxxxx Xxx Xxxxxx
Name: Xxxxxxx Xxx Xxxxxx
Title: Secretary
NIC Inc. - Amendment No. 4 to Amended and Restated Credit Agreement
