EXHIBIT-10.25
THIRD AMENDMENT TO
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "THIRD AMENDMENT") is made
and entered into as of the 30th day of April, 1999, among BILLING CONCEPTS,
INC., a Delaware corporation, formerly known as Billing Information Concepts,
Inc. ("BORROWER"); BILLING CONCEPTS CORP., a Delaware corporation, formerly
known as Billing Information Concepts Corp. ("PARENT COMPANY"); ENHANCED
SERVICES BILLING, INC., a Delaware corporation ("ESBI"); BILLING CONCEPTS
SYSTEMS, INC., a Delaware corporation, formerly known as Computer Resources
Management, Inc. ("BCSI"); CONCEPTS ACQUISITION CORP., a Delaware corporation
("CAC") (Parent Company, ESBI, BCSI, and CAC collectively, the "GUARANTORS");
and THE FROST NATIONAL BANK, a national banking association, individually, as
the Issuing Bank and as the Agent, NATIONSBANK, N.A., a national banking
association, successor to The Boatmen's National Bank of St. Louis,
individually, and each of the lenders which becomes a party to the Credit
Agreement as provided in SECTION 10.7 thereof (individually, a "BANK" and
collectively, the "BANKS").
RECITALS
A. Borrower, Parent Company, the Agent, the Issuing Bank and the Banks
have heretofore entered into the Credit Agreement dated as of December 20, 1996
(as amended, modified, restated and supplemented from time to time, the "CREDIT
AGREEMENT").
B. Borrower, Parent Company and the Banks desire to further amend the
Credit Agreement to redefine the term "Change in Executive Management."
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and for other good, fair and valuable considerations, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree that the terms and provisions of the Credit Agreement are amended and
restated as follows:
1. DEFINED TERMS AND RELATED MATTERS.
(a) Unless otherwise defined herein, the capitalized terms used
herein which are defined in the Credit Agreement shall have the meanings
specified therein.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Third Amendment shall refer to this Third
Amendment as a whole and not to any particular provision of this Third
Amendment.
2. AMENDMENTS. The definition of "Change in Executive Management" in
ANNEX B of the Credit Agreement is hereby amended to read in its
entirety as follows:
"CHANGE IN EXECUTIVE MANAGEMENT" means that any
of Xxxxxx X. Xxxxxx, Xx., Xxxxx X. Xxxxxxx or Xxxx X.
Xxxxxxxx shall cease to be an executive officer of
Parent Company.
3. In order to induce the Agent, the Issuing Bank and the Banks to enter
into this Third Amendment, Borrower and Parent Company hereby represent and
warrant to the Agent, the Issuing Bank and the Banks that, as of the date of
this Third Amendment, (a) the representations and warranties set forth in the
Credit Agreement and each other Loan Document to which it is a party are true
and correct as if made on and as of the date hereof (other than those
representations and warranties expressly limited by their terms to a specific
date), (b) no Default or Event of Default has occurred and is continuing, and
(c) no event has occurred since the date of the most recent financial statements
delivered pursuant to SECTION 5.1 of the Credit Agreement that has caused a
Material Adverse Effect.
4. Borrower hereby acknowledges and agrees that no facts, events, status
or conditions presently exist which, either now or with the passage of time or
the giving of notice or both, presently constitute a basis for any claim or
cause of action against any of the Banks, or any defense to the payment of any
of the indebtedness evidenced or to be evidenced by any of the Loan Documents.
5. ESBI covenants and agrees that, as to the Affiliate Guaranty executed
and delivered by ESBI in favor of the Banks as part of the Security Documents,
such Affiliate Guaranty is a continuing guarantee and shall remain in full force
and effect until the termination of the obligations of the Banks to make Loans
or issue Letters of Credit and the indefeasible payment in full of the
Obligations (as defined in such Affiliate Guaranty).
6. BCSI covenants and agrees that, as to the Affiliate Guaranty executed
and delivered by BCSI in favor of the Banks as part of the Security Documents,
such Affiliate Guaranty is a continuing guarantee and shall remain in full force
and effect until the termination of the obligations of the Banks to make Loans
or issue Letters of Credit and the indefeasible payment in full of the
Obligations (as defined in such Affiliate Guaranty).
7. CAC covenants and agrees that, as to the Affiliate Guaranty executed
and delivered by CAC in favor of the Banks as part of the Security Documents,
such Affiliate Guaranty is a continuing guarantee and shall remain in full force
and effect until the termination of the obligations of the Banks to make Loans
or issue Letters of Credit and the indefeasible payment in full of the
Obligations (as defined in such Affiliate Guaranty).
8. Parent Company covenants and agrees that, as to the Parent Guaranty
executed and delivered by Parent Company in favor of the Banks as part of the
Security Documents, such Parent Guaranty is a continuing guarantee and shall
remain in full force and effect until the termination of the obligations of the
Banks to make Loans or issue Letters of Credit and the indefeasible payment in
full of the Obligations (as defined in such Parent Guaranty).
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9. As to each Security Document executed in favor of the Banks, Borrower
hereby ratifies and confirms the liens and security interests of the Banks in
and to all collateral covered by each such Security Document to which Borrower
is a party as security for the prompt and full payment and performance of the
obligations secured by each such Security Document. In furtherance of the
foregoing, all liens and security interests of each such Security Document
(which are hereby acknowledged to be valid and subsisting) are hereby carried
forward, continued, extended, modified and renewed to secure the prompt and full
payment and performance of the obligations secured by each such Security
Document.
10. Each Loan Document is hereby amended and modified to the extent
necessary to give full force and effect to the terms of this Third Amendment,
and each such Loan Document shall hereafter be construed and interpreted after
giving full force and effect to the terms of this Third Amendment. As amended,
modified and supplemented pursuant to this Third Amendment, Borrower, Parent
Company, ESBI, BCSI and CAC hereby ratify, confirm and restate each Loan
Document to which it is a party and agrees that each such Loan Document shall
continue in full force and effect. Each of the Loan Documents now or hereafter
executed and delivered pursuant to the terms hereof or pursuant to the terms of
the Credit Agreement, as amended hereby, or as further evidence of or security
for or in connection with the Credit Agreement, as amended hereby, is hereby
amended to the extent necessary so that any reference in any such documents,
instruments or agreements to the Credit Agreement shall be a reference to the
Credit Agreement as amended hereby.
11. In the event that any one or more of the provisions contained in this
Third Amendment shall be determined invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision or provisions in every other respect and the remaining provisions of
this Third Amendment shall not be impaired in any way.
12. When required or implied by the context used, defined terms used
herein shall include the plural as well as the singular, and vice versa.
13. This Third Amendment shall be governed by and construed in accordance
with the internal laws of the State of Texas and applicable federal laws of the
United States of America. This Third Amendment has been entered into in Bexar
County, Texas and shall be performable for all purposes in Bexar County, Texas.
The courts within the State of Texas shall have jurisdiction over any and all
disputes arising under or pertaining to this Third Amendment; and any such
dispute shall be heard in the county or judicial district of the principal place
of business of The Frost National Bank.
14. This Third Amendment shall be binding upon and inure to the benefit of
all parties hereto and their respective successors and assigns; PROVIDED,
HOWEVER, that neither Borrower nor Parent Company nor ESBI nor BCSI nor CAC nor
any of their respective successors or assigns may, without the prior written
consent of all of the Banks, assign any rights, powers, duties or obligations
hereunder.
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15. This Third Amendment may be executed in any number of counterparts and
by different parties hereto on separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute but one and the same instrument.
16. This Third Amendment constitutes a Loan Document.
17. Upon execution of this Third Amendment by the Banks, Borrower, Parent
Company, ESBI, BCSI and CAC shall deliver to the Agent, in form and substance
satisfactory to the Agent, the certificates and documents described on ANNEX A.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be duly executed by their respective authorized signatories as of the day and
year first above written.
BORROWER:
BILLING CONCEPTS, INC.
By: /S/ XXXXX X. XXXXXXX
Name: XXXXX X. XXXXXXX
Title: EXECUTIVE VP & CFO
PARENT COMPANY:
BILLING CONCEPTS CORP.
By: /S/ XXXXX X. XXXXXXX
Name: XXXXX X. XXXXXXX
Title: EXECUTIVE VP & CFO
GUARANTORS:
ENHANCED SERVICES BILLING, INC.
By: /S/ XXXXX X. XXXXXXX
Name: XXXXX X. XXXXXXX
Title: EXECUTIVE VP & CFO
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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BILLING CONCEPTS CORP.
By: /S/ XXXXX X. XXXXXXX
Name: XXXXX X. XXXXXXX
Title: EXECUTIVE VP & CFO
BILLING CONCEPTS SYSTEMS, INC.
By: /S/ XXXXX X. XXXXXXX
Name: XXXXX X. XXXXXXX
Title: EXECUTIVE VP & CFO
CONCEPTS ACQUISITION CORP.
By: /S/ XXXXX X. XXXXXXX
Name: XXXXX X. XXXXXXX
Title: EXECUTIVE VP & CFO
BANKS:
THE FROST NATIONAL BANK
Individually, as the Issuing Bank and as the Agent
By: /S/ XXXXX X. XXXXX
Xxxxx X. Xxxxx, Vice President
NATIONSBANK, N.A., successor to
The Boatmen's National Bank of St. Louis
By: /S/ XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx, Vice President
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ANNEX A
1. Borrower, Parent Company, ESBI, BCSI and CAC shall have provided to the
Agent a certificate signed by the secretary of such corporation, which
secretary's office and signature shall be confirmed by another officer of such
corporation, dated as of the effective date of this Third Amendment attaching
thereto or containing therein, and certifying as to the following: (i) corporate
resolutions, as in effect and neither revoked nor rescinded, duly adopted by the
board of directors of such corporation authorizing the execution, delivery and
performance of this Third Amendment; and (ii) names, incumbency and specimen
signatures of the officers of such corporation authorized to execute and deliver
this Third Amendment on behalf of such corporation.
2. All other documents requested by the Agent in connection with this
Third Amendment.
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