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EXHIBIT 4.9
FIFTH AMENDMENT TO CREDIT AGREEMENT
This FIFTH AMENDMENT TO CREDIT AGREEMENT ("Amendment") is entered into
effective as of December 31, 2000 (the "Amendment Date"), by and among TYLER
TECHNOLOGIES, INC. (the "Borrower"), each of the "Guarantors" under the Credit
Agreement described below, each of the banks or other lending institutions which
is a party to the Credit Agreement described below (individually a "Bank", and
collectively the "Banks"), and BANK OF AMERICA, NATIONAL ASSOCIATION, a national
banking association, as agent for the Banks (the "Agent").
RECITALS:
A. Pursuant to that certain Credit Agreement, dated as of October 1,
1999, by and among the Borrower, the Banks, and the Agent (as such agreement has
been and may be amended, restated, or otherwise modified from time to time, the
"Credit Agreement"), the Banks agreed to provide to the Borrower secured credit
facilities as set forth therein.
B. The Borrower has requested that the Agent and the Banks amend
certain provisions of the Credit Agreement.
C. Subject to satisfaction of the conditions set forth herein, the
Agent and the Banks are willing to amend the Credit Agreement as set forth
below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
Definitions
Section 1.1 Definitions. Unless otherwise defined in this Amendment,
each capitalized term used in this Amendment has the meaning given to such term
in the Credit Agreement (as amended by this Amendment).
ARTICLE 2
Amendments to Credit Agreement
Section 2.1 Amendment to Section 1.1.
(a) Effective as of the Amendment Date, the following
definitions in Section 1.1 of the Credit Agreement are hereby amended
and restated in their entirety to read as follows:
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 1
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"Applicable Margin" means, as of any date of determination
with respect to interest rates, unused commitment fees, and letter of
credit fees, the percentage amount set forth in the table below
opposite the then applicable time period:
Applicable
Applicable Margin for Applicable
Margin for Unused Margin for
Base Rate Commitment Letter of
Time Period Tranches Fee Credit Fee
----------- ---------- ---------- ----------
January 1, 2001 through 2.00% 0.50% 2.00%
and including March 30,
2001
April 1, 2001 through 2.50% 0.50% 2.50%
and including June 30,
2001
July 1, 2001 through and 3.00% 0.50% 3.00%
including September 30,
2001
October 1, 2001 through 3.50% 0.50% 3.50%
and including December
31, 2001
January 1, 2002 and 4.00% 0.50% 4.00%
thereafter
"Capital Expenditures" means, with respect to any Person and
with respect to any period of determination, the consolidated
expenditures of such Person during such period that are required to be
included in or are reflected by the consolidated property, plant, or
equipment accounts of such Person, or any similar fixed asset or long
term capitalized asset accounts of such Person, on the consolidated
balance sheet of such Person in conformity with generally accepted
accounting principles. Notwithstanding the foregoing, Capital
Expenditures shall exclude (a) all costs which are to be reimbursed to
such Person by such Person's customers and (b) any such expenditures
deemed to have occurred as a result of any Acquisition.
"Revolving Loan Commitment" means, for any Bank, the amount
set forth next to such Bank's name on the following table as its
Revolving Loan Commitment, or if such Bank has entered into any
Assignment and Acceptance after January 2, 2001, as set forth for such
Bank as its Revolving Loan Commitment in the Register maintained by the
Agent pursuant to Section 8.5(c), in each case as such amount may be
terminated pursuant to Section 6.2.
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 2
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Bank Commitment
---- ----------
Bank of America, National Association $6,562,500
The Chase Manhattan Bank $3,750,000
Bank One, Texas, N.A. $3,750,000
Texas Capital Bank, National Association $ 937,500
"Revolving Loan Commitment Maximum Amount" means $15,000,000.
"Revolving Loan Maturity Date" means the earlier of July 1,
2002 or any date this Agreement is terminated pursuant to the terms
hereof.
(b) Effective as of the Amendment Date, the following
definitions are added to Section 1.1 of the Credit Agreement in
alphabetical order.
"Account" means, with respect to any Person, any of such
Person's now owned or hereafter acquired or arising accounts, as
defined in the UCC, including any rights to payment for the sale or
lease of goods or the rendition of services, whether or not they have
been earned by performance, and "Accounts" means, with respect to such
Person, all of the foregoing.
"Borrowing Base" means, at any time, an amount determined by
the Agent in its sole discretion equal to the lesser of (a) the
Revolving Loan Commitment or (b) eighty percent (80.0%) of Eligible
Accounts.
"Borrowing Base Certificate" means a certificate by a
responsible officer of the Borrower, in substantially the form of
Exhibit H or in such other form as may be acceptable to the Agent in
its sole discretion, setting forth the calculation of the Borrowing
Base, including a calculation of each component thereof, all in such
detail as shall be satisfactory to the Agent. All calculations of the
Borrowing Base in connection with the preparation of any Borrowing Base
Certificate shall originally be made by the Borrower and certified to
the Agent; provided that the Agent shall have the right to review and
adjust any such calculation in its discretion.
"Eligible Accounts" means the sum of each Account of any
Credit Party created in the ordinary course of business that is
acceptable to the Agent in its sole discretion and satisfies each of
the following conditions: (a) the Agent has a perfected, first priority
security interest in such Account pursuant to the Security Agreement;
(b) such Account complies with all applicable laws, rules, and
regulations; (c) such Account is not more than ninety (90) days past
due from its original due date; (d) such account is not more than one
hundred twenty (120) days past its date of original invoice; (e) the
invoice relating to such Account shall be issued concurrently with, or
in a reasonably prompt fashion after, the date of
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 3
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shipment of the goods or the date of performance of the services to
which such Account relates, as applicable; (f) such Account was created
in connection with (i) the sale of goods by such Credit Party in the
ordinary course of business and such sale has been consummated and such
goods have been shipped to the account debtor, or (ii) the performance
of services by the Credit Party in the ordinary course of business and
such services have been completed and accepted by the account debtor,
or if such Account represents a progress billing under a written
contract, the work performed and such progress billing are in
accordance with the applicable contract; (g) such Account arises from
an enforceable contract, the performance of which has been completed by
the Credit Party, and, other than services provided by subcontractors
pursuant to the contract between Xxxx Layer Xxxxxxx Company and Nassau
County, New York, no portion of such performance has been subcontracted
by the Credit Party to a third party; (h) such Account does not arise
from the sale of any good that is on a xxxx-and-hold, guaranteed sale,
sale-or-return, sale on approval, consignment, or any other repurchase
or return basis; (i) such Credit Party has good and indefeasible title
to such Account and such Account is not subject to any Lien except
Liens in favor the Agent; (j) such Account is not subject to any set-
off, counterclaim, defense, dispute, recoupment, or adjustment other
than normal discounts for prompt payment; (k) the account debtor with
respect to such Account is not insolvent or the subject of any
bankruptcy or insolvency proceeding and has not made an assignment for
the benefit of creditors, suspended normal business operations,
dissolved, liquidated, terminated its existence, ceased to pay its
debts as they become due, or suffered a receiver or trustee to be
appointed for any of its property or affairs; (l) such Account is not
evidenced by chattel paper or an instrument; (m) such Credit Party's
performance of the contract to which such Account relates is not
assured by a performance, completion, or other bond; (n) no default
exists under such Account by any party thereto; (o) such Account is not
owed by an Affiliate of such Credit Party; (p) such Account is payable
in Dollars by the account debtor with respect to such Account; (q) the
account debtor with respect to such Account is domiciled in the United
States; (r) less than twenty percent (20.0%) of the aggregate balances
then outstanding on other Accounts owed by the same account debtor and
its Affiliates to such Credit Party fail to satisfy any of the
requirements set forth in clause (c), clause (d), or clause (e)
preceding; (s) the account debtor with respect to such Account is not
the United States or any department, agency, or instrumentality
thereof; (t) the account debtor with respect to such Account is not
located in a jurisdiction denying creditors access to its courts in the
absence of a notice of business activities report or other similar
filing, unless such Credit Party has either qualified as a foreign
corporation authorized to transact business in such state or has filed
a notice of business activities report or similar filing with the
applicable jurisdiction for the then current year; and (u) such
Account, together with all other Accounts owed by the account debtor
with respect to such Account, do not exceed in the aggregate an amount
equal to twenty percent (20%) of the aggregate of all Accounts of the
Credit Parties (provided that only the amount of the excess of such
Accounts over such twenty percent (20%) shall be excluded as ineligible
by virtue of this clause (u)). Notwithstanding anything to the contrary
contained in this Agreement, Eligible Accounts shall not include any
Accounts that
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 4
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the Agent, in its sole discretion, determines to be ineligible. The
amount of the Eligible Accounts owed by an account debtor to the Credit
Parties shall be reduced by the amount of all "contra accounts" and
other obligations owed by the Credit Parties to such account debtor.
The portion of any Account constituting retainage that has been
withheld by the account debtor shall not constitute an Eligible
Account.
"Permitted Acquisition" means the purchase by the Borrower or
a Subsidiary of the Borrower that is not an Excluded Subsidiary of all
or substantially all of the outstanding capital stock or assets of a
Person, provided that (a) the aggregate consideration paid by the
Borrower or such Subsidiary does not exceed (i) $2,000,000 in
connection with any such Acquisition and (ii) $4,000,000 in connection
with all such Acquisitions during the term of this Agreement, and (b)
no Default or Event of Default exists at the time of making such
Acquisition and would not result therefrom.
"Swing Line Termination Date" means January 2, 2001.
Section 2.2 Amendment to Section 2.1.
(a) Effective as of the Amendment Date, Section 2.1(a)(ii) is
amended and restated in its entirety to read as follows:
(ii) [Deleted.]
(b) Effective as of the Amendment Date, Section 2.1(a)(iii)(C)
of the Credit Agreement is amended and restated in its entirety to read
as follows:
(C) [Deleted.]
(c) Effective as of the Amendment Date, Section 2.1(a)(iii)(D)
of the Credit Agreement is amended and restated in its entirety to read
as follows:
(D) [Deleted.]
(d) Effective as of the Amendment Date, the first sentence of
Section 2.1(b)(i) of the Credit Agreement is amended and restated in
its entirety to read as follows:
(i) Each Revolving Loan Borrowing shall be made
pursuant to a Revolving Loan Borrowing Request, together with
a Borrowing Base Certificate, given by the Borrower to the
Agent in writing or by telecopy at the time required pursuant
to Section 2.5.
(e) Effective as of the Amendment Date, Section 2.1(c)(i)(B)
of the Credit Agreement is amended and restated in its entirety to read
as follows:
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 5
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(B) when required and in the amount necessary to keep the
amount of the Revolving Loan plus the Letter of Credit Exposure equal
to or less than the Borrowing Base.
Section 2.3 Amendment to Section 2.3. Effective as of the Amendment
Date, Section 2.3 of the Credit Agreement is amended by adding, immediately
following clause (b), a new clause (c) thereto which shall read in its entirety
as follows:
(c) Effective as of the Swing Line Termination Date, all Swing
Line Loans shall be paid in full, and the Swing Line Lender's
obligation to make advances to the Borrower under the Swing Line Note
shall be terminated.
Section 2.4 Amendment to Section 5.2(c). Effective as of the Amendment
Date, Section 5.2(c) of the Credit Agreement is amended and restated in its
entirety to read as follows:
(a) Monthly Reports. Beginning with September 2000, as soon as
available and in any event not later than 45 days after the end of each
month, (i) a copy of the internally prepared consolidated financial
statements of the Borrower for such month and for the fiscal year to
date period ending on the last day of such month, including therein the
consolidated balance sheets of the Borrower as of the end of such month
and the consolidated statement of income for such month and for such
fiscal year to date period, setting forth the consolidated financial
position and results of the Borrower for such month and fiscal year to
date period, all in reasonable detail and duly certified by a
Responsible Officer of the Borrower as having been prepared in
accordance with generally accepted accounting principles (subject to
normal year-end audit adjustments), and (ii) a copy of the internally
prepared consolidating financial schedules of the Borrower from which
the consolidated financial statements of Borrower provided to the Agent
pursuant to clause (i) were prepared.
Section 2.5 Amendment to Section 5.2(l). Effective as of the Amendment
Date, Section 5.2 of the Credit Agreement is amended by (a) deleting the word
"and" at the end of clause (j), (b) deleting the period at the end of clause
(k), and adding "; and" at the end thereof, and (c) adding a new clause (l)
which shall read in its entirety as follows:
(l) Borrowing Base Certificates and Accounts Receivable
Agings. As soon as available and in any event not later than 30 days
after the end of each calendar month, the Borrower will deliver to the
Agent a duly completed Borrowing Base Certificate, together with an
aged trial balance of all then-existing Accounts; provided, however,
that such information shall be provided more frequently from time to
time upon the Agent's request or as required pursuant to Section
2.1(b)(i).
Section 2.6 Amendment to Section 5.2(c). Effective as of the Amendment
Date, Section 5.2(c) of the Credit Agreement is amended and restated in its
entirety to read as follows:
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 6
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(a) Net Worth. The Borrower shall not permit the consolidated
Net Worth of the Borrower at any time to be less than an amount equal
to (a) ninety (90.0%) of the Borrower's consolidated Net Worth as of
December 31, 2000, plus (b) the cumulative amount of (i) ninety percent
(90.0%) of the positive consolidated net income of the Borrower and its
Subsidiaries for each fiscal quarter ending after December 31, 2000,
plus (ii) one hundred percent (100%) of any increase in consolidated
Net Worth of the Borrower and its Subsidiaries attributable to issuance
of capital stock after December 31, 2000.
Section 2.7 Amendment to Section 5.5(b). Effective as of the Amendment
Date, Section 5.5(b) of the Credit Agreement is amended and restated in its
entirety to read as follows:
(b) Debt Ratio. As of March 31, 2001, and the last day of each
fiscal quarter thereafter, the Borrower shall not permit the
consolidated Debt Ratio (computed for purposes of this Section 5.5(b)
by giving effect only to continuing operations of the Borrower and its
Subsidiaries) to be greater than 2.25 to 1.00.
Section 2.8 Amendment to Section 5.5(c). Effective as of the Amendment
Date, Section 5.5(c) of the Credit Agreement is amended and restated in its
entirety to read as follows:
(c) Fixed Charge Coverage Ratio. Beginning with the fiscal
quarter ending June 30, 2001, and continuing on the last day of each
fiscal quarter thereafter, the Borrower shall not permit the ratio of
(i) the consolidated EBITDA of the Borrower for the four quarters then
ended, less the consolidated cash taxes paid by the Borrower during
such period and less the consolidated Capital Expenditures of the
Borrowing during such period (exclusive of the Excluded Database
Expenditures) to (ii) the consolidated interest expense of the Borrower
for the preceding four fiscal quarters then ending (including the
interest component of Capital Leases, but excluding any net effect of
interest income), plus capitalized interest for the preceding four
fiscal quarters then ending, plus the consolidated cash dividends paid
by the Borrower for the preceding four fiscal quarters then ending
(provided that for the fiscal quarters ending June 30, 2001 and
September 30, 2001 such calculation shall be annualized for the three
preceding months) to be less than the ratio specified in the table
opposite the then applicable time period:
Minimum Fixed Charge Coverage
Dates Ratio
----- -----------------------------
June 30, 2001 and September 30, 1.25 to 1.00
2001
December 31, 2001 and thereafter 2.50 to 1.00
Section 2.9 Amendment to Section 5.5(d). Effective as of the Amendment
Date, Section 5.5(d) of the Credit Agreement is amended and restated in its
entirety to read as follows:
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 7
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(d) Capital Expenditures. Beginning with the fiscal quarter
ending March 30, 2001, and continuing on the last day of each fiscal
quarter thereafter, the Borrower shall not permit the consolidated
Capital Expenditures of the Borrower, less the amount of such Capital
Expenditures reimbursed by the customers of the Borrower, to exceed the
maximum amount specified in the table opposite the then applicable time
period:
Dates Maximum Cumulative Amount
----- -------------------------
January 1, 2001 through and including $ 3,500,000
March 30, 2001
January 1, 2001 through and including $ 6,000,000
June 30, 2001
January 1, 2001 through and including $10,000,000
September 30, 2001
January 1, 2001 through and including $12,000,000
December 31, 2001
January 1, 2002 through and including $ 3,000,000
March 30, 2002
January 1, 2002 through and including $ 6,000,000
June 30, 2002
Section 2.10 Amendment to Section 5.5. Effective as of the Amendment
Date, Section 5.5 of the Credit Agreement is amended by adding a new clause (e)
thereto which shall read in its entirety as follows:
(e) EBITDA. As of the fiscal quarter ending March 31, 2001,
the consolidated EBITDA of the Borrower for the immediately preceding
three months shall not be less than $1,800,000.
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 8
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Section 2.11 Amendment to Section 5.9. Effective as of the Amendment
Date, Section 5.9 of the Credit Agreement is amended and restated in its
entirety to read as follows:
5.9 Corporate Transactions. The Borrower shall not, without
the Agent's consent, permit any Restricted Entity to (a) merge,
consolidate, or amalgamate with another Person, or liquidate, wind up,
or dissolve itself (or take any action towards any of the foregoing),
(b) convey, sell, lease, assign, transfer or otherwise dispose of any
of its property, businesses, or other assets outside of the ordinary
course of business (except for Permitted Minor Asset Sales and equity
offerings of common stock in the Borrower), or (c) make any
Acquisition, other than a Permitted Acquisition; provided that any
Subsidiary of the Borrower that is not an Excluded Subsidiary may
merge, consolidate, or amalgamate into any wholly owned Subsidiary of
the Borrower that is also not an Excluded Subsidiary or convey sell,
lease, assign, transfer, or otherwise dispose of any of its assets to
any wholly owned Subsidiary of the Borrower that is not an Excluded
Subsidiary (and if such disposition transfers all or substantially all
of the assets of the transferring Subsidiary, such Subsidiary may then
liquidate, wind up, or dissolve itself), provided that a wholly owned
Subsidiary that is not an Excluded Subsidiary is the surviving or
acquiring Subsidiary. In connection with any Permitted Minor Asset
Sale, provided that no Default or Event of Default exists or would be
caused thereby, upon reasonable advance written notice from the
Borrower of the intent to so dispose of assets, the Agent at the
Borrower's expense shall release the collateral to be sold from the
liens and security interests created by the Credit Documents and shall
execute and deliver in favor of such Subsidiary any releases reasonably
requested by the Borrower to evidence such release.
Section 2.12 Amendment to Section 8.3. Effective as of the Amendment
Date, Section 8.3 of the Credit Agreement is amended and restated in its
entirety to read as follows:
Section 8.3 Modifications, Waivers, and Consents. No
modifications or waiver of any provision of this Agreement or the
Revolving Loan Notes, nor any consent required under this Agreement or
the Revolving Loan Notes, shall be effective unless the same shall be
in writing and signed by the Agent, Majority Banks, and the Borrower,
and then such modification, waiver, or consent shall be effective only
in the specific instance and for the specific purpose for which given;
provided, however, that no modification, waiver, or consent shall,
unless in writing and signed by the Agent, all the Banks, and the
Borrower do any of the following: (a) waive any of the conditions
specified in Section 3.1 or Section 3.2; (b) increase the Revolving
Loan Commitments of the Banks; (c) forgive or reduce the amount or rate
of any principal, interest, or fees payable under the Credit Documents,
or postpone or extend the time for payment thereof; (d) release any
Guaranty or any material collateral securing the Credit Obligations
(except as otherwise permitted or required herein); (e) modify the
definition of "Borrowing Base" or "Eligible" Accounts"; or (f) change
the percentage of Banks required to take any action under this
Agreement, the Revolving Loan Notes, or the Security Documents,
including
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any amendment of the definition of "Majority Banks," or this Section
8.3. No modification, waiver, or consent shall, unless in writing and
signed by the Agent or the Issuing Bank, affect the rights or
obligations of the Agent or the Issuing Bank, as the case may be, under
the Credit Documents. The Agent shall not modify, waive, or grant any
consent under any other Credit Document if such action would be
prohibited under this Section 8.3 with respect to the Credit Agreement
or the Revolving Loan Notes.
Section 2.13 Amendment to Article 8. Effective as of the Amendment
Date, Article 8 of the Credit Agreement is amended by adding at the end thereof
a new Section 8.13 which shall read in its entirety as follows:
Section 8.13 Term and Termination. The term of this Agreement
shall end on the Revolving Loan Maturity Date unless terminated as
otherwise provided in the Agreement. The Borrower may terminate this
Agreement at any time if it: (a) gives the Agent and the Lenders three
(3) Business Days prior written notice of termination by registered or
certified mail; and (b) pays and performs all Credit Obligations,
including, without limitation, all fees payable under the Loan
Documents on or prior to the effective date of termination; provided
that upon any termination of this Agreement by the Borrower pursuant to
the terms of this Section, with respect to any Letters of Credit, the
Borrower may deposit with the Agent funds equal to the Letter of Credit
Exposure in the Letter of Credit Collateral Account as provided by
Section 2.2 in lieu of discharging the obligations under the Letters of
Credit.
Section 2.14 Addition of Exhibit H. Effective as of the Amendment Date,
Exhibit H is added to the Credit Agreement and shall read in its entirety as
Exhibit H attached hereto.
ARTICLE 3
Conditions
Section 3.1 Items to be Delivered By the Borrower. The effectiveness of
this Amendment is subject to the Borrower's delivery to the Agent of each of the
following items prior to or simultaneously with execution and delivery of this
Amendment:
(a) Amendment Documents. Each other agreement, certificate,
document, or instrument required by the Agent to be executed or
delivered by the Borrower or any other party in connection with this
Amendment (the "Amendment Documents"), duly executed or delivered by
the parties thereto; and
(b) Facility Fee. On the Amendment Date and on the first day
of each fiscal quarter thereafter until the Revolving Loan Maturity
Date, payment to the Agent for the ratable benefit of the Banks a fee
of $37,500 in respect of the amendment contained herein and the
facility provided under the Credit Agreement. None of the fees payable
pursuant to this Section 3.1(b) shall be refunded, reduced, or the date
for payment thereof extended without the prior written consent of the
Banks. All fees payable by the Borrower pursuant to
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this Section 3.1(b) shall be fully earned when paid. This Section
3.1(b) supersedes in its entirety the provisions of paragraph 2 of that
certain Amendment No. 3, dated as of August 14, 2000, among the
Borrower, the Agent, and the Lenders.
Section 3.2 Other Conditions. This Amendment shall become effective
upon the following conditions precedent being performed to the Agent's
satisfaction, such satisfaction being evidenced by the Agent's execution and
delivery of this Amendment. The Borrower's failure to comply with the following
conditions shall be an Event of Default under the Credit Agreement:
(a) Continued Effect of Representations and Warranties. All
representations and warranties contained in the Credit Documents (as
amended hereby) shall be true, correct, and complete in all material
respects except as disclosed otherwise to the Agent in writing and as
acceptable to the Agent or representations specifically relating to a
prior date or no longer relevant due to the occurrence of an event or
circumstances specifically permitted hereunder or by any other Credit
Document;
(b) Absence of Default. No Default or Event of Default shall
have occurred and be continuing;
(c) Corporate Proceedings. All corporate proceedings taken in
connection with the transactions contemplated by this Amendment and all
other agreements, documents, and instruments executed and/or delivered
pursuant hereto, and all legal matters incident thereto, shall be
satisfactory to the Agent and its legal counsel;
(d) Fees and Expenses. Payment or reimbursement to the Agent
for all expenses, costs, and fees, including, without limitation, fees
and costs of the Agent's legal counsel, incurred by, or due to, the
Agent in connection with negotiating and documenting this Amendment and
the other Amendment Documents to the extent invoiced or otherwise
billed by the Agent to the Borrower;
(e) Additional Information. The Agent shall have received such
additional agreements, certificates, documents, instruments, and
information as the Agent or its legal counsel may request to effect the
transactions contemplated hereby.
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties. The Borrower hereby
represents and warrants to the Agent and the Banks that, as of the date of and
after giving effect to this Amendment:
(a) the execution, delivery, and performance of this Amendment
and any and all other Amendment Documents executed and/or delivered in
connection herewith have been authorized by all requisite action on the
part of the Borrower and each of the Guarantors and will not violate
any such Person's articles of incorporation, bylaws, or other similar
constituent documents;
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(b) all representations and warranties set forth in the Credit
Agreement and in the other Credit Documents are true and correct in all
material respects as if made again on and as of such date (except as
disclosed otherwise to the Agent in writing and as acceptable to the
Agent or representations specifically relating to a prior date or no
longer relevant due to the occurrence of an event or circumstances
specifically permitted hereunder or by any other Credit Document);
(c) no Default or Event of Default has occurred and is
continuing; and
(d) the Credit Agreement and the other Credit Documents (as
amended by this Amendment) are and remain legal, valid, binding, and
enforceable obligations of each of the parties thereto.
ARTICLE 5
Miscellaneous
Section 5.1 This Amendment shall not constitute and shall not be deemed
a waiver of any Default or Event of Default, whether arising as a result of the
violation of any covenant of the Credit Agreement or otherwise, or a waiver of
any rights or remedies arising as a result of any such Default or Event of
Default.
Section 5.2 Governing Law. THIS AMENDMENT, AND ALL DOCUMENTS AND
INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, SHALL BE GOVERNED BY AND CONSTRUED
ACCORDING TO THE LAWS OF THE STATE OF TEXAS; PROVIDED THAT TO THE EXTENT FEDERAL
LAW WOULD ALLOW A HIGHER RATE OF INTEREST THAN WOULD BE ALLOWED BY THE LAWS OF
THE STATE OF TEXAS, THEN WITH RESPECT TO THE PROVISIONS OF ANY LAW WHICH
PURPORTS TO LIMIT THE AMOUNT OF INTEREST THAT MAY BE CONTRACTED FOR, CHARGED OR
RECEIVED IN CONNECTION WITH ANY OF THE OBLIGATIONS, SUCH FEDERAL LAW SHALL
APPLY.
Section 5.3 Agreement Remains in Effect; No Waiver. Except as expressly
provided herein, all terms and provisions of the Credit Agreement and the other
Credit Documents shall remain unchanged and in full force and effect and are
hereby ratified and confirmed. No delay or omission by the Agent or any Bank in
exercising any power, right, or remedy shall impair such power, right, or remedy
or be construed as a waiver thereof or an acquiescence therein, and no single or
partial exercise of any such power, right, or remedy shall preclude other or
further exercise thereof or the exercise of any other power, right, or remedy
under the Credit Agreement, the other Credit Documents, or otherwise.
Section 5.4 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Credit
Document shall survive the execution and delivery of this Amendment and the
other Credit Documents, and no investigation by the Agent or
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 12
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any Bank or any closing shall affect the representations and warranties or the
right of the Agent and the Banks to rely upon them.
Section 5.5 Reference to Credit Documents. Each of the Credit
Documents, including, without limitation, the Credit Agreement, the Amendment
Documents, and any and all other agreements, documents, or instruments now or
hereafter executed and/or delivered pursuant to the terms hereof or pursuant to
the terms of the Credit Agreement as amended hereby, are hereby amended so that
any reference in such Credit Documents to the Credit Agreement shall mean a
reference to the Credit Agreement as amended hereby, and the term Credit
Documents as defined in the Credit Agreement and as used in any of the "Credit
Documents" includes, without limitation, the Amendment Documents.
Section 5.6 Severability. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 5.7 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of the Borrower, the Agent, the Banks, and their
respective successors in interest and assigns. The Borrower may not assign any
right, power, duty, or obligation hereunder without the prior written consent of
the Agent and the Banks, as applicable.
Section 5.8 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 5.9 Expenses of the Agent. As provided in the Credit Agreement,
the Borrower agrees to pay on demand all, third party out-of-pocket costs and
expenses incurred by the Agent in connection with the preparation, negotiation,
and execution of this Amendment, the Amendment Documents, or any other Credit
Documents executed pursuant hereto and any and all amendments, modifications,
and supplements thereto, including, without limitation, the fees of the Agent's
legal counsel, and all costs and expenses incurred by the Agent in connection
with the enforcement or preservation of any rights under the Credit Agreement,
as amended hereby, or any other Credit Document, including, without limitation,
the costs and fees of the Agent's legal counsel.
Section 5.10 Waiver of Trial By Jury. TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AMENDMENT OR ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY OR THE ACTIONS OF THE AGENT OR ANY BANK IN THE
NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF.
Section 5.11 Counterparts. This Amendment may be executed
simultaneously in one or more multiple originals and on telecopy counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 13
14
Section 5.12 Waiver of Claims and Defenses. To induce the Agent and the
Banks to enter into this Amendment, the Borrower and each Guarantor
(collectively, the "Obligated Parties" and individually, an "Obligated Party")
represents and warrants that as of the Amendment Date there are no claims or
offsets against or defenses or counterclaims to their respective obligations
under the Credit Documents, and each Obligated Party waives any and all such
claims, offsets, defenses, or counterclaims whether known or unknown, arising
prior to the Amendment Date. Additionally, each Obligated Party hereby releases
the Agent and the Banks, and each of their respective legal representatives,
successors, affiliates, parents, subsidiaries, predecessors, assigns,
shareholders, partners, trustees, beneficiaries, administrators, heirs, former
and current officers, directors, agents, attorneys, and employees, and their
respective successors, assigns, heirs, executors, and administrators
(collectively, the "Bank Parties") from any and all claims, actions, suits,
causes of action, accounts, judgments, agreements, promises, executions, debts,
damages, demands, rights, obligations, liabilities, and controversies now in
existence concerning or in connection with the Credit Agreement, this Amendment,
or any other Credit Document (collectively, the "Claims") of every nature and
description, in law or in equity, whether known or unknown, foreseen or
unforeseen, and regardless of whether any Obligated Party hereafter discovers
any facts which may give rise to any Claim.
Section 5.13 Reaffirmation of Agreements. Each Obligated Party hereby
consents to the other Obligated Parties, the Agent, and the Banks entering into
this Amendment and agrees that (a) the Credit Documents to which each such
Obligated Party is a party shall remain in full force and effect and shall
continue to be the legal, valid, and binding obligation of such Obligated Party
enforceable against such Obligated Party in accordance with their respective
terms, (b) the obligations secured and/or evidenced by the Credit Documents to
which such Obligated Party is a party include, without limitation, the
"Obligations" as such term is defined in the Credit Agreement as amended by this
Amendment, and (c) this Amendment is effective with respect to such Obligated
Party and is binding in all respects.
THIS AMENDMENT, TOGETHER WITH THE CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS AS WRITTEN, REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
[Remainder of page intentionally left blank]
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 14
15
IN WITNESS WHEREOF, the Borrower, the Guarantors, the Banks, and the
Agent have caused this Amendment to be executed and delivered by their duly
authorized officers effective as of the date first written above.
BORROWER:
TYLER TECHNOLOGIES, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
GUARANTORS:
CMS HOLDINGS, INC.
COMPACT DATA SOLUTIONS, INC.
EAGLE COMPUTER SYSTEMS
FUNDBALANCE, INC.
GEMINI SOFTWARE SYSTEMS, INC.
INTERACTIVE COMPUTER DESIGNS,
INC.
TYLER K, INC. (formerly known as Kofile
Inc.)
XXXXXXXXXXX.XXX, INC.
PROCESS, INCORPORATED
RAM QUEST SOFTWARE, INC
TYLER SD, INC. (formerly known as
Spectrum Data, Inc.)
THE SOFTWARE GROUP, INC.
CAPITAL COMMERCE REPORTER, INC.
XXXX LAYER XXXXXXX COMPANY
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 15
16
AGENT:
BANK OF AMERICA, NATIONAL
ASSOCIATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 16
17
BANKS:
BANK OF AMERICA, NATIONAL
ASSOCIATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
THE CHASE MANHATTAN BANK
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
BANK ONE, TEXAS, N.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
TEXAS CAPITAL BANK, NATIONAL
ASSOCIATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
FIFTH AMENDMENT TO CREDIT AGREEMENT - Page 17
18
EXHIBIT H
FORM OF BORROWING BASE CERTIFICATE
19
BORROWING BASE CERTIFICATE
Date: _________, ____
To: Bank of America, National Association
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxxxxxx
Gentlemen:
This Borrowing Base Certificate ("Certificate"), [dated as of
__________ __, 2000,] [for the month ended ____________ __, 20__,](1) is
executed and delivered by Tyler Technologies, Inc. (the "Borrower") to Bank of
America, National Association (the "Agent"), pursuant to that certain Credit
Agreement, dated as of October 1, 1999 (as amended and as such agreement may be
further amended or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the Agent, and the Banks named therein. All
terms used herein shall have the meanings assigned to them in the Credit
Agreement.
The Borrower represents and warrants to the Agent and the Banks that
all information contained herein is true, correct, and complete in all material
respects, and that the total Eligible Accounts referred to below represent the
Eligible Accounts that qualify for purposes of determining the Borrowing Base
under the Credit Agreement. The Borrower also represents and warrants that all
figures listed below or attached hereto have been calculated based on the
provisions of the Credit Agreement. [The Borrower further represents and
warrants to the Agent and the Banks that attached hereto as Schedule 1 is a list
of all Accounts of the Borrower as of the last Business Day of the preceding
calendar month, showing all Accounts aged in 30, 60, 90, and 120 or greater day
intervals and specifying the balance due for each account debtor.](2)
The Borrower represents and warrants to the Agent and the Banks that
the representations and warranties of the Borrowers contained in Article 4 of
the Credit Agreement are true and correct in all material respects on and as of
the date of this Certificate as if made on and as of the date hereof except to
the extent that such representations and warranties speak to a specific date,
and that no Default has occurred and is continuing.
----------
(1) Use first alternative for Certificates delivered in connection with
borrowing requests and second alternative for required month end reporting.
(2) To be included for Borrowing Base Certificates delivered with
respect to each calendar month end.
BORROWING BASE CERTIFICATE - Page 1
20
As of the date of this Certificate, the Borrowing Base is
$___________(3) (subject to the Agent's right to review and adjust the Borrowing
Base in accordance with the Credit Agreement). The following is a summary
calculation of the Borrowing Base.
1. Gross Accounts as of ________ __, 20__ $
---------
2. Less: ineligible Accounts as detailed on Schedule 2 $
attached hereto (determined pursuant to the definition of ---------
Eligible Accounts in the Credit Agreement)
3. Eligible Accounts $
---------
4. Available revolving credit amount based on Eligible $
Accounts (80% of Line 3) ---------
5. Borrowing Base (lesser of $15,000,000 or amount of $
Line 4) ---------
Upon request of the Agent, additional information supporting the
foregoing calculations of the Borrowing Base will be made available to the Agent
and the Banks for review.
IN WITNESS WHEREOF, the undersigned (in the capacity stated and not
individually) has duly executed this Certificate as of the date first above
written.
TYLER TECHNOLOGIES, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
----------
(3) Insert amount from Line 5 of the table below.
BORROWING BASE CERTIFICATE - Page 2
21
Schedule 1
to
Borrowing Base Certificate
Accounts Receivable Aging
Schedule 1
22
Schedule 2
to
Borrowing Base Certificate
Calculation of Ineligible Accounts
Schedule 2
