EXHIBIT 4.8
SECOND AMENDMENT TO CREDIT AGREEMENT,
FIRST AMENDMENT TO PLEDGE AND SECURITY AGREEMENT,
AND LENDER'S CONSENT AND WAIVER
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, FIRST AMENDMENT TO PLEDGE
AND SECURITY AGREEMENT, AND LENDER'S CONSENT (this "Amendment") is dated
effective September 30, 2002, by and among TYLER TECHNOLOGIES, INC., a Delaware
corporation ("Borrower") and BANK OF TEXAS, N.A., a national banking association
("Lender").
WITNESSETH:
WHEREAS, Borrower and Lender entered into that certain Credit
Agreement, dated February 27, 2002, pursuant to which Lender agreed to make the
Loan (as therein defined) available to Borrower (as heretofore or hereafter
amended, the "Credit Agreement") (each capitalized term used herein, but not
otherwise defined shall have the same meaning given to it in the Credit
Agreement); and
WHEREAS, the Credit Agreement has been amended by that certain First
Amendment to Credit Agreement dated March 5, 2002 whereby Lender and Borrower
agreed to (i) increase the principal amount of the Loan from $8,000,000 to
$10,000,000, and (ii) delete the $5,000,000 limit on the aggregate amount of
Letter of Credit Exposure; and
WHEREAS, to secure the Loan, Borrower and Lender entered into that
certain Pledge and Security Agreement dated February 27, 2002 (the "Pledge
Agreement") whereby Borrower pledged as security, among other things, all of its
shares of stock in H.T.E., Inc. ("HTE"); and
WHEREAS, Borrower has requested that Lender: (i) allow Borrower to
repurchase up to 1,500,000 shares of outstanding Borrower stock; (ii) return
stock certificate number 2391, representing 4,650,000 shares of HTE stock, and
stock certificate number 2416, representing 968,952 shares of HTE stock
(collectively referred to herein as the "HTE Stock Certificates"), for the
purpose of allowing HTE to reissue the shares in smaller denominations; and
(iii) amend the Credit Agreement to: (a) allow Borrower to sell up to $1,000,000
of HTE stock per fiscal year, and (b) reduce the Minimum Tangible Net Worth
Covenant for the quarter ending September 30, 2002; and
WHEREAS, subject to the terms and conditions herein contained, Lender
is willing to agree to such requests.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, Borrower and
Lender hereby covenant and agree as follows:
ARTICLE I - AMENDMENT TO CREDIT AGREEMENT
SECTION 1.1 SALE OF HTE STOCK. The Credit Agreement is hereby amended to include
after Section 9.12 the following:
SECTION 9.13 SALE OF CERTAIN COLLATERAL. Sell, transfer or
convey shares of HTE, Inc. owned by Borrower; provided,
however, that Borrower shall be permitted to sell, transfer or
convey, without Lender's consent, any such shares of HTE, Inc.
and, concurrently therewith Lender shall release such shares
as are sold, transferred or conveyed in compliance
SECOND AMENDMENT TO CREDIT AGREEMENT, FIRST AMENDMENT TO PLEDGE AND SECURITY
AGREEMENT AND LENDER'S CONSENT (TYLER)
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with this Section 9.13 from the Liens of the Loan Documents
so long as: (i) the proceeds from such sale, transfer or
conveyance do not exceed, in the aggregate, $1,000,000 during
any fiscal year, (ii) at the time of any such sale, no Default
or Event of Default has occurred and is continuing under the
Credit Agreement and (iii) Borrower gives Lender five (5)
Business Day's prior written notice of any such sale and
reimburses Lender for any costs incurred by Lender in
connection with the return of the stock certificates
evidencing the shares so sold, transferred or conveyed.
SECTION 1.2 MINIMUM TANGIBLE NET WORTH COVENANT. Section 9.9(a) of the Credit
Agreement is hereby deleted and restated as follows:
(a) Tangible Net Worth on the last day of any fiscal quarter
to be less than the sum of (i) the amount equal to eighty nine
and eight tenths percent (89.8%) of Borrower's consolidated
Tangible Net Worth computed as of September 30, 2002, plus
(ii) as of the end of each fiscal quarter commencing with
December 31, 2002, the product of (A) ninety percent (90%)
times (b) the consolidated net income of Borrower for the
immediately preceding fiscal quarter, provided, that in no
case shall such sum be less than the minimum Tangible Net
Worth calculated hereunder for the previous quarter.
ARTICLE II - CONSENT AND WAIVER
SECTION 2.1 REPURCHASE OF OUTSTANDING STOCK. The Credit Agreement provides,
among other things, that, without the prior written consent of Lender, Borrower
shall declare no Distribution nor make any Investment, prior to payment in full
of the Obligations owed to Lender, and the termination of Lender's Commitment,
under the Credit Agreement. Borrower has requested Lender's consent to
Borrower's repurchase of up to 1,500,000 shares of outstanding stock in Borrower
during the period from August 15, 2002 to November 30, 2002 (the "Targeted
Repurchase"). Lender hereby consents to the Targeted Repurchase and waives any
Default or Event of Default that may have occurred as a result of any portion of
the Targeted Repurchase occurring prior to the effective date of this Amendment;
provided that such waiver shall be limited to the Targeted Repurchase and shall
not constitute a waiver of any other Default or Event of Default.
SECTION 2.2 HTE STOCK CERTIFICATES. Borrower has also requested that Lender
return to Borrower the HTE Stock Certificates so that HTE may reissue the shares
in smaller denominations (the "Reissued Shares"). Lender hereby consents to such
request. Upon receipt of the Reissued Shares, Borrower is hereby required to
forward such Reissued Shares to Lender, together with appropriate stock powers.
This consent and the temporary return of the HTE Stock Certificates do not
constitute a release of lien against the shares evidenced by the HTE Stock
Certificates.
SECTION 2.3 LIMITATION ON CONSENT. The consents granted in this Amendment are
limited to the foregoing actions and neither consent constitutes a waiver of any
required consent with respect to any other action.
ARTICLE III - AMENDMENT TO PLEDGE AND SECURITY AGREEMENT
SECTION 3.1 EXHIBIT "E". Borrower and Lender hereby agree that Exhibit "E" of
the Pledge Agreement shall be amended upon Lender's receipt of the Reissued
Shares to Lender. Lender shall record the certificate number and number of
shares represented by each of the Reissued Shares on Exhibit "E" and shall
forward a revised Exhibit "E" to Borrower.
SECOND AMENDMENT TO CREDIT AGREEMENT, FIRST AMENDMENT TO PLEDGE AND SECURITY
AGREEMENT AND LENDER'S CONSENT (TYLER)
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ARTICLE IV - MISCELLANEOUS
SECTION 4.1 CONDITION TO CLOSING; FURTHER ASSURANCES. As a condition to the
closing of this Amendment, Borrower shall execute and deliver this Amendment and
such other documents as may be necessary or as may be required, in the opinion
of counsel to Lender, to effect the transactions contemplated hereby and
continue the liens and/or security interests of all other collateral
instruments, as modified by this Amendment. Borrower also agrees to provide to
Lenders such other documents and instruments as Lenders reasonably may request
in connection with the modification of the Loans effected hereby.
SECTION 4.2 CONTINUING EFFECT. Except as modified and amended hereby, the Credit
Agreement and other Loan Documents are and shall remain in full force and effect
in accordance with their terms.
SECTION 4.3 PAYMENT OF EXPENSES. Borrower agrees to pay to Lender the reasonable
attorneys' fees and expenses of Lender's counsel and other expenses incurred by
Lender in connection with this Amendment.
SECTION 4.4 BINDING AGREEMENT. This Amendment shall be binding upon, and shall
inure to the benefit of, the parties' respective representatives, successors and
assigns.
SECTION 4.5 NO DEFENSES. Borrower by its execution of this Amendment, hereby
declares that it has no set-offs, counterclaims, defenses or other causes of
action against Lender arising out of the Loan, this Amendment or otherwise; and,
to the extent any such setoffs, counterclaims, defenses or other causes of
action may exist, whether known or unknown, such items are hereby waived by
Borrower.
SECTION 4.6 USURY SAVINGS CLAUSE. Notwithstanding anything to the contrary in
this Amendment, the Note or any other Loan Document, or in any other agreement
entered into in connection with the Note or securing the indebtedness evidenced
by the Note, whether now existing or hereafter arising and whether written or
oral, it is agreed that the aggregate of all interest and other charges
constituting interest, or adjudicated as constituting interest, and contracted
for, chargeable or receivable under the Note or otherwise in connection with the
Note shall under no circumstances exceed the maximum rate of interest permitted
by applicable law. In the event the maturity of the Note is accelerated by
reason of an election by the holder thereof resulting from a default thereunder
or under any other document executed as security therefore or in connection
therewith, or by voluntary prepayment by the maker, or otherwise, then earned
interest may never include more than the maximum rate of interest permitted by
applicable law. If from any circumstance any holder of any of the Note shall
ever receive interest or any other charges constituting interest, or adjudicated
as constituting interest, the amount, if any, which would exceed the maximum
rate of interest permitted by applicable law shall be applied to the reduction
of the principal amount owing on such Note or on account of any other principal
indebtedness of the maker to the holders of such Note, and not to the payment of
interest, or if such excessive interest exceeds the unpaid balance of principal
thereof and such other indebtedness, the amount of such excessive interest that
exceeds the unpaid balance of principal thereof and such other indebtedness
shall be refunded to the maker. All sums paid or agreed to be paid to the holder
of the Note for the use, forbearance or detention of the indebtedness of the
maker to the holder of such Note shall be amortized, prorated, allocated and
spread throughout the full term of such indebtedness until payment in full for
the purpose of determining the actual rate on such indebtedness is uniform
throughout the term thereof.
The terms "maximum amount" or "maximum rate" as used in this Amendment
or the Note, or in any other agreement entered into in connection with the Note
or securing the indebtedness evidenced by the Note, whether now existing or
hereafter arising and whether written or oral, include, as to Chapter 303 of the
Texas Finance Code (and as same may be incorporated by reference in other
statutes of the State of
SECOND AMENDMENT TO CREDIT AGREEMENT, FIRST AMENDMENT TO PLEDGE AND SECURITY
AGREEMENT AND LENDER'S CONSENT (TYLER)
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Texas), but otherwise without limitation, that rate based upon the "weekly
ceiling"; provided, however, that this designation shall not preclude the rate
of interest contracted for, charged or received in connection with the Loan from
being governed by, or construed in accordance with, any other state or federal
law.
SECTION 4.7 COUNTERPARTS. This Amendment may be executed in several
counterparts, all of which are identical, each of which shall be deemed an
original, and all of which counterparts together shall constitute one and the
same instrument, it being understood and agreed that the signature pages may be
detached from one or more of such counterparts and combined with the signature
pages from any other counterpart in order that one or more fully executed
originals may be assembled.
SECTION 4.8 CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE EXTENT FEDERAL
LAWS PREEMPT THE LAWS OF THE STATE OF TEXAS.
SECTION 4.9 ENTIRE AGREEMENT. This Amendment, together with the other Loan
Documents, contain the entire agreements between the parties relating to the
subject matter hereof and thereof. This Amendment and the other Loan Documents
may be amended, revised, waived, discharged, released or terminated only by a
written instrument or instruments, executed by the party against which
enforcement of the amendment, revision, waiver, discharge, release or
termination is asserted. Any alleged amendment, revision, waiver, discharge,
release or termination which is not so documented shall not be effective as to
any party.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES RELATED TO THE SUBJECT MATTER HEREIN CONTAINED AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
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SECOND AMENDMENT TO CREDIT AGREEMENT, FIRST AMENDMENT TO PLEDGE AND SECURITY
AGREEMENT AND LENDER'S CONSENT (TYLER)
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IN WITNESS WHEREOF, this Amendment is executed effective as of the date
first written above.
LENDER:
BANK OF TEXAS, N.A., a national banking
association
By:
-----------------------------------------
Xxxx Xxxx
Senior Vice President
BORROWER:
TYLER TECHNOLOGIES, INC. a Delaware
corporation
By:
-----------------------------------------
Xxxxx X. Xxxxxx,
Vice President-Finance
SECOND AMENDMENT TO CREDIT AGREEMENT, FIRST AMENDMENT TO PLEDGE AND SECURITY
AGREEMENT AND LENDER'S CONSENT (TYLER)
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CONSENT OF GUARANTORS
Each of the undersigned Guarantors hereby acknowledges and consents to
the foregoing amendment and expressly acknowledges and agrees that (a) its
Guaranty shall guaranty, and the Security Agreement executed by it shall secure,
the Loan as amended hereby, and (b) except as may be modified to incorporate the
terms of this Amendment, the Guaranty of the other Loan Documents to which it is
a part, are and shall continue in full force and effect.
IN WITNESS WHEREOF, each of the Guarantors has caused this Consent to
be duly executed by its authorized officer.
GUARANTORS:
APPRAISAL RECORDS SERVICES, INC., a Texas
corporation
By:
-------------------------------------
Xxxxx X. Xxxxxx,
Vice President-Finance
Address: c/o Tyler Technologies, Inc.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Treasurer
Fax: (000) 000-0000
AUTOMATED RECORDS SERVICES, INC., a Texas
corporation
By:
-------------------------------------
Xxxxx X. Xxxxxx,
Vice President-Finance
Address: c/o Tyler Technologies, Inc.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Treasurer
Fax: (000) 000-0000
SECOND AMENDMENT TO CREDIT AGREEMENT, FIRST AMENDMENT TO PLEDGE AND SECURITY
AGREEMENT AND LENDER'S CONSENT (TYLER)
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XXXX LAYER XXXXXXX COMPANY, a
Delaware corporation
By:
-----------------------------------------
Xxxxx X. Xxxxxx,
Vice President-Finance
Address: c/o Tyler Technologies, Inc.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Treasurer
Fax: (000) 000-0000
EAGLE COMPUTER SYSTEMS, INC., a
Delaware corporation
By:
-----------------------------------------
Xxxxx X. Xxxxxx,
Vice President-Finance
Address: c/o Tyler Technologies, Inc.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Treasurer
Fax: (000) 000-0000
FUNDBALANCE, INC., a
Delaware corporation
By:
-----------------------------------------
Xxxxx X. Xxxxxx,
Vice President-Finance
Address: c/o Tyler Technologies, Inc.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Treasurer
Fax: (000) 000-0000
SECOND AMENDMENT TO CREDIT AGREEMENT, FIRST AMENDMENT TO PLEDGE AND SECURITY
AGREEMENT AND LENDER'S CONSENT (TYLER)
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INTERACTIVE COMPUTER DESIGNS, a
Texas corporation
By:
-----------------------------------------
Xxxxx X. Xxxxxx,
Vice President-Finance
Address: c/o Tyler Technologies, Inc.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Treasurer
Fax: (000) 000-0000
MUNIS, INC., a Maine corporation
By:
-----------------------------------------
Xxxxx X. Xxxxxx,
Vice President-Finance
Address: c/o Tyler Technologies, Inc.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Treasurer
Fax: (000) 000-0000
XXXXXXXXXXX.XXX, INC., a
Delaware corporation
By:
-----------------------------------------
Xxxxx X. Xxxxxx,
Vice President-Finance
Address: c/o Tyler Technologies, Inc.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Treasurer
Fax: (000) 000-0000
SECOND AMENDMENT TO CREDIT AGREEMENT, FIRST AMENDMENT TO PLEDGE AND SECURITY
AGREEMENT AND LENDER'S CONSENT (TYLER)
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THE SOFTWARE GROUP, INC., a
Texas corporation
By:
-----------------------------------------
Xxxxx X. Xxxxxx,
Vice President-Finance
Address: c/o Tyler Technologies, Inc.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Treasurer
Fax: (000) 000-0000
TYLER LEASING, INC., a
Delaware corporation
By:
-----------------------------------------
Xxxxx X. Xxxxxx,
Vice President-Finance
Address: c/o Tyler Technologies, Inc.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Treasurer
Fax: (000) 000-0000
SECOND AMENDMENT TO CREDIT AGREEMENT, FIRST AMENDMENT TO PLEDGE AND SECURITY
AGREEMENT AND LENDER'S CONSENT (TYLER)
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