Exhibit 10.1
AMENDMENT NO. 3
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment No. 3 dated as of April 28, 2017 (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 (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.
2.1 Section 1.01 of the Credit Agreement is hereby amended by amending and restating the defined term “LIBOR” to read in its entirety as follows:
““LIBOR” means, for any applicable interest period, the rate per annum equal to the London Interbank Offered Rate (or a comparable or successor rate which is approved by the Bank), as published by Bloomberg (or other commercially available source providing quotations of such rate as selected by the Bank from time to time) at approximately 11:00 a.m. London time two (2) London Banking Days before the commencement of the interest period, for U.S. Dollar deposits (for delivery on the first day of such interest period) with a term equivalent to such interest period. If such rate is not available at such time for any reason, then the rate for that interest period will be determined by such alternate method as reasonably selected by the Bank. A "London Banking Day" is a day on which banks in London are open for business and dealing in offshore dollars. If at any time LIBOR is less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
Consent to Amendment No. 3 to Amended and Restated Credit Agreement
2.2 Section 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, 2019; provided, however, that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.”
2.3 Section 6.02(e) of the Credit Agreement is hereby amended by deleting Section 6.02(e) in its entirety and replacing it with the following:
“(e) As soon as available, but in any event within 31 days after the end of each fiscal year end of Borrower, forecasts prepared by management of Borrower, in form reasonably satisfactory to the Bank, of consolidated statements of income or operations and cash flow estimates of Borrower and its Subsidiaries on an annual basis for the immediately following fiscal year (including the fiscal year in which the Maturity date occurs).”
SECTION 3. Limitations on Amendments.
3.1 The 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.
3.2 This 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:
4.1 Immediately 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.
4.2 Immediately after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.
Consent to Amendment No. 3 to Amended and Restated Credit Agreement
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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:
7.1 the execution and delivery of this Amendment, whether the same or different copies, by the Borrower and Bank;
7.2 a fully executed Joinder to Amended and Restated Continuing and Unlimited Guaranty, wether the same or different copies, by the Borrower, Guarantors and Bank; and
7.3 an 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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Consent to Amendment No. 3 to Amended and Restated Credit Agreement
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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/ Stephen M. Kovzan | |
| Name: | Stephen M. Kovzan | |
| Title: | Chief Financial Officer | |
Bank: | BANK OF AMERICA, N.A. | |
| By: | /s/ Dianne M. Smith | |
| Name: | Dianne M. Smith | |
| Title: | Senior Vice President | |
Consent to Amendment No. 3 to Amended and Restated Credit Agreement
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CONSENT TO AMENDMENT NO. 3
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 (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. 3 to the Amended and Restated Credit Agreement dated as of April 28, 2017.
Each Guarantor hereby reaffirms its obligations under the Guaranty.
In Witness Whereof, the Guarantors have caused this Consent to be executed as of April 28, 2017.
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 |
Consent to Amendment No. 3 to Amended and Restated Credit Agreement
KENTUCKY INTERACTIVE LLC, a Kentucky limited liability company | |
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 |
Consent to Amendment No. 3 to Amended and Restated Credit Agreement
UTAH INTERACTIVE, LLC, a Utah limited liability company | |
VERMONT INFORMATION CONSORTIUM, LLC, a Vermont limited liability company | |
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/William Van Asselt Name: William Van Asselt Title: Secretary | |
Consent to Amendment No. 3 to Amended and Restated Credit Agreement