Exhibit 10.74
CREDIT AGREEMENT
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This Credit Agreement ("Agreement") is made and entered into on August 25, 2000,
by and between Tier Technologies, Inc., a California corporation ("Borrower")
and Imperial Bank, a California banking corporation ("Bank").
Subject to the terms and conditions of this Agreement, any security agreement(s)
executed by Borrower in favor of Bank, any note(s) executed by Borrower in favor
of Bank, or any other agreements executed in conjunction therewith
(collectively, the "Loan Documents"), Bank shall make the loan(s) and or
advance(s) (individually a "Loan" and collectively "Loans") referred to below to
Borrower.
In consideration of mutual covenants and conditions hereof, the parties hereto
agree as follows:
1. AMOUNT AND TERMS OF CREDIT
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1.01 Asset Based Line of Credit Commitment.
(a) Line of Credit - Accounts Receivable Borrowing Base Constrained. Subject
to all the terms and conditions of this Agreement, provided that no event of
default then has occurred and is continuing, Bank shall upon Borrower's request,
make advances ("ABL Loans") to Borrower, from time to time and in such amounts
as Borrower shall request up to an aggregate principal amount outstanding not to
exceed:
Eighty-five percent (85%) of Eligible Accounts and Fifty percent (50%)
of Eligible Unbilled Accounts,
as such Eligible Accounts may be adjusted from time to time as
provided for under Section 4.15 hereof (the "Borrowing Base")
and in no event more than $10,000,000 (the "ABL Line of Credit").
If at any time or for any reason, the outstanding principal amount of the ABL
Loan Account (as defined below) is greater than the lesser of: (x) the Borrowing
Base or (y) the ABL Line of Credit, Borrower shall pay to Bank, in cash, the
amount of such excess within three (3) business days from the determination of
such excess. Any commitment of Bank, pursuant to the terms of this Agreement, to
make ABL Loans shall expire on the ABL Maturity Date (as hereinafter defined),
subject to Bank's right to renew said commitment in its sole and absolute
discretion at Borrower's request. Any such renewal of said commitment shall not
be binding upon Bank unless it is in writing and signed by an officer of Bank.
Provided that no Event of Default (as hereinafter defined) has occurred and is
continuing, all or any portion of the ABL Loans advanced by Bank which are
repaid by Borrower shall be available for reborrowing in accordance with the
terms hereof. Borrower promises to pay to Bank the entire outstanding unpaid
principal balance (and all accrued unpaid interest thereon) of the ABL Loan
Account on the earlier of demand by Bank upon the occurrence of an Event of
Default which is not remedied within any applicable cure period or waived by
Bank or August 26, 2002 ("ABL Maturity Date").
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(b) Initial Audit. A representative of Bank shall conduct an audit of
Borrower's books and records relating to the Accounts and any other Collateral
for the ABL Loans and shall make extracts therefrom, all with results
satisfactory to Bank ("Satisfactory Initial Audit"). Borrower shall not be
responsible for the expense of this initial audit.
(c) [Intentionally Omitted.]
(d) Loan Ledger Account; Use of Proceeds. The amount of each ABL Loan made by
Bank to Borrower hereunder shall be debited to the loan ledger account of
Borrower maintained by Bank for the ABL Line of Credit (herein called the "ABL
Loan Account") and Bank shall credit the ABL Loan Account with all loan
repayments in respect thereof made by Borrower. ABL Loans may only be used for
supporting general corporate funding requirements, including without limitation
financing capital expenditures, repaying existing debt and financing
acquisitions, and the issuance of standby letters of credit.
(e) ABL Loans Interest. Borrower further promises to pay to Bank from the date
of the advance of the initial ABL Loan through the ABL Maturity Date, on or
before the last day of each month, interest on the unpaid principal balance of
the ABL Loan Account at a rate of interest equal to one-quarter of one percent
(0.25%) per annum in excess of the rate of interest which Bank has announced as
its prime lending rate (the "Prime Rate"), which shall vary concurrently with
any change in the Prime Rate, or at the LIBOR Rate plus two and one-half percent
(2.50%) as determined in accordance with the LIBOR addendum annexed hereto.
(f) Certain Definitions. As used herein the following terms shall have the
following meanings:
"Accounts" means any right to payment for goods or property sold or leased,
licensed or rented, or to be sold or to be leased, licensed or to be rented, or
for services rendered or to be rendered no matter how evidenced, including
without limitation accounts receivable, Unbilled Accounts, contract rights,
chattel paper, instruments, purchase orders, notes, drafts, acceptances, general
intangibles and other forms of obligations and receivables.
"Collateral" means any and all property of Borrower which is assigned or
hereafter is assigned to Bank as security or in which Bank now has or hereafter
acquires a security interest as provided in Section 1.05.
"Eligible Accounts" Eligible Accounts shall include all Accounts (other
than Unbilled Accounts; provided that "Eligible Accounts" shall also NOT include
any of the following:
(1) All Accounts under which payment is not received within 90 days from
any invoice date.
(2) All Accounts against which the account debtor or any other person
obligated to make payment thereon asserts any defense, offset, counterclaim or
other right (each, a "Claim") to avoid or reduce the liability represented by
the Account to the extent of such Claim; provided that Borrower shall have the
right to challenge any Claim and the Accounts subject thereto shall remain
Eligible Accounts during the period of dispute, not to exceed thirty days from
the date Borrower receives notice of Claim (unless otherwise excluded
hereunder).
(3) Any Accounts if the account debtor or any other person liable in
connection therewith is insolvent, subject to bankruptcy or receivership
proceedings or has made an assignment for the benefit of
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creditors or whose credit standing is unacceptable to Bank and Bank has so
notified Borrower, unless such Accounts are covered by credit insurance
acceptable to Bank.
(4) Accounts due from an account debtor if 25% or more of the aggregate
amount of accounts of such debtor have at that time remained unpaid for more
than 90 days past the invoice date.
(5) Accounts due from any single debtor to the extent that such Accounts
representing more than 25% of Borrower's total accounts receivable are not
eligible; provided, however, (i) the Bank may deem, in its sole discretion, the
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entire amount, or any portion thereof, eligible; and (ii) accounts due from
publicly held debtors rated investment grade by Standard & Poor's Credit Index
or other rating agency acceptable to the Bank are not subject to this
concentration limit.
(6) Accounts with respect to international transactions unless insured by
an insurance company acceptable to the Bank or covered by letters of credit
issued or confirmed by a bank acceptable to the Bank. Bank, in its reasonable
discretion, may deem as eligible amounts due from major, publicly owned foreign
companies.
(7) Accounts with respect to which the account debtor is an officer,
director, shareholder, employee, subsidiary or affiliate of Borrower.
(8) Accounts where the account debtor is a seller to Borrower, whereby a
potential offset (contra) exists, to the extent of such potential offset.
(9) Collection accounts.
(10) C.O.D. accounts.
(11) All United States Government receivables.
(12) Deferred revenues.
(13) Pre-xxxxxxxx.
"Eligible Unbilled Accounts" means total Unbilled Accounts less any Unbilled
Accounts which are listed in the certificate provided by Borrower pursuant to
Section 4.05(f), provided that Eligible Unbilled Accounts shall not exceed
$6,000,000.
"Unbilled Accounts" means Accounts for which Borrower has recognized income
but has not billed an account debtor).
(g) Requests for ABL Loans. Requests for ABL Loans hereunder shall be in writing
duly executed by Borrower substantially in the form of Exhibit A attached hereto
and shall contain a Borrowing Base Certificate in the form of Exhibit B attached
hereto setting forth, as of the most recent month end where such data is
available, the matters referred to in Section 1.01 (a), which shall disclose
that Borrower is entitled to the amount of Loan being requested.
(h) Letter of Credit Usage and Sublimit. Subject to the availability of the ABL
Line of Credit, at any time and from time to time from the date hereof through
the banking day immediately prior to the ABL
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Maturity Date, Bank shall issue for the account of Borrower such standby letters
of credit ("Letters of Credit") as Borrower may request, which request shall be
made by delivering to Bank a duly executed letter of credit application on
Bank's standard form; provided, however, that the outstanding and undrawn
amounts under all such Letters of Credit (i) shall not at any time exceed
$2,500,000 and (ii) shall be deemed to constitute ABL Loans for the purpose of
calculating availability under the ABL Line of Credit. Unless Borrower shall
have deposited with Bank cash collateral in an amount sufficient to cover all
undrawn amounts under each such Letter of Credit and Bank shall have agreed in
writing, no Letter of Credit shall have an expiration date that is later than
the ABL Maturity Date. All Letters of Credit shall be in form and substance
acceptable to Bank in its sole discretion and shall be subject to the terms and
conditions of Bank's form application and letter of credit agreement. Borrower
will pay any standard issuance and other fees that Bank notifies Borrower will
be charged for issuing and processing Letters of Credit for Borrower. Bank's
current schedule of fees and charges in effect on the date hereof is attached as
Exhibit 1.01 (h).
(i) Late Charge. If any installment payment, interest payment, principal
payment or principal balance due under the ABL Line of Credit is delinquent
twenty (20) or more days, Borrower agrees to pay Bank a late charge in the
amount of two and five-tenths percent (2.5%) of the payment so due and unpaid,
in addition to the payment; but nothing in this paragraph is to be construed as
any obligation on the part of the Bank to accept any past due payment or less
than the total unpaid principal balance after maturity. All payments, at Bank's
sole discretion, shall be applied first to any late charges owing, then to
interest and the remainder, if any, to principal.
(j) Default Rate. If an Event of Default occurs hereunder, then during the
continuance thereof at the Bank's option, the interest rate shall be two and
five-tenths percent (2.5%) per year in excess of the rate otherwise applicable.
(k) Interest Calculations. The term "Prime Rate" shall mean the rate that the
Bank has announced as its prime lending rate, which shall vary concurrently with
any change in the Prime Rate. The term "LIBOR Rate" shall mean the LIBOR rate as
specified in the addendum annexed hereto. Interest based on the Prime Rate shall
vary concurrently with any change in the Prime Rate. All interest shall be
computed on the basis of the actual number of days during which the principal
balance of the corresponding Loans are outstanding divided by 360, which shall
for interest computation purposes be considered one (1) year.
1.02 Loan Fees. In addition to any other amounts due, or to become due,
concurrent with the execution hereof, in connection with the ABL Line of Credit,
Borrower shall pay to Bank a loan fee of Twenty-Five Thousand Dollars and 00/100
($25,000.00), of which Five Thousand Dollars and 00/100 ($5,000.00) has been
paid prior to the date hereof.
1.03 Documentation Fee, Costs and Expenses. In addition to any other amounts
due, or to become due, concurrently with the execution hereof, Borrower agrees
to pay to Bank a documentation fee in the amount of Two Hundred Fifty and 00/100
($250.00), and all other costs and expenses incurred by the Bank in the
preparation of this Agreement, the other Loan Documents and the perfection of
any security interest granted to Bank by Borrower.
1.04 Unused Facility Fee. On January 1, 2001, and on the first day of each
fiscal quarter thereafter during the term of this Agreement, an unused facility
fee will be payable in arrears in an amount equal to 0.25% per annum times the
average available amount of all Loans, any amounts reserved for issued letters
of credit will be included in used portion.
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1.05 Collateral. Borrower shall grant or cause to be granted to Bank a first
priority lien on any and all personal property assets of Borrower (excluding
assets owned by Tier Technologies (Australia) Pty. Ltd., Simsion & Xxxxxx
Associates and ADC Consultants Pty. Ltd.) which is assigned or hereafter is
assigned to Bank as security or in which Bank now has or hereafter acquires a
security interest or pursuant to the terms of any security agreement, an
intellectual property security agreement or otherwise as security for all of
Borrower's obligations to Bank, all as may be subject to Section 5.03 hereof;
provided, however, notwithstanding any of the foregoing, Borrower shall assign,
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or cause to be assigned, to Bank a first priority security interest in 65% of
the stocks of the following subsidiaries:
(a) ADC Consultants Pty. Ltd.;
(b) TSource, Inc.;
(c) Tier Technologies UK, Inc.; and
(d) Tier Technologies (Australia) Pty. Ltd.
1.06 Collection of Payments. Borrower authorizes Bank to collect all interest,
fees, costs, and/or expenses due under this Agreement by charging Borrower's
demand deposit account number 00-000-000 with Bank, or any other demand deposit
account maintained by Borrower with Bank, for the full amount thereof. Should
there be insufficient funds in any such demand deposit account to pay all such
sums when due, the full amount of such deficiency shall be immediately due and
payable by Borrower.
2. REPRESENTATIONS OF BORROWER
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Borrower represents and warrants that:
2.01 Existence and Rights. Borrower is a corporation, duly organized and
existing and in good standing under the laws of the State of California, without
limit as to the duration of its existence; Borrower is authorized and in good
standing to do business in the state of its incorporation; Borrower has the
appropriate powers and adequate authority, rights and franchises to own its
property and to carry on its business as now conducted, and is duly qualified
and in good standing in each state in which the character of the properties
owned by it therein or the conduct of its business makes such qualification
necessary; and Borrower has the power and adequate authority to make and carry
out this Agreement. Borrower has no investment in any other business entity,
except for Permitted Investments, unless specified in writing to Bank.
2.02 Agreement Authorized. The execution, delivery and performance of this
Agreement and the Loan Documents are duly authorized and do not require the
consent or approval of any governmental body or other regulatory authority; are
not in contravention of or in conflict with any law or regulation or any term or
provision of Borrower's charter/articles of incorporation, by-laws, or similar
document as the case may be, and this Agreement is the valid, binding and
legally enforceable obligation of Borrower in accordance with its terms; subject
only to bankruptcy, insolvency or similar laws affecting creditors rights
generally.
2.03 No Conflict. The execution, delivery and performance of this Agreement and
the Loan Documents are not in contravention of or in conflict with any
agreement, indenture or undertaking to
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which Borrower is a party or by which it or any material portion of its property
may be bound or affected, such that a Material Adverse Effect would be created
thereby, and do not cause any lien, charge or other encumbrance to be created or
imposed upon any such property by reason thereof.
2.04 Litigation. Except as disclosed in writing to Bank by Borrower, there is
no litigation or other proceeding pending or threatened against or affecting
Borrower which if determined adversely to Borrower or its interest would have a
material adverse effect on the financial condition of Borrower, and Borrower is
not in default with respect to any order, writ, injunction, decree or demand of
any court or other governmental or regulatory authority.
2.05 Financial Condition. The balance sheet of Borrower as of June 30, 2000,
and the related profit and loss statement for the nine month period ended as of
that date and the notes thereto as filed in Borrower's Form 10-Q for the three
quarters ending subsequent to September 30, 1999, along with Borrower's Form 10-
K filed for the year ended September 30, 1999 (collectively, the "Financial
Statements"), a copy of which has heretofore been delivered to Bank by Borrower,
and all other statements and data submitted in writing by Borrower to Bank in
connection with this request for credit are true and correct in all material
respects, and said balance sheet fairly presents the financial condition of
Borrower as of the date thereof, and has been prepared in accordance with
generally accepted accounting principles on a basis consistently maintained.
Since such date there have been no material adverse changes in the financial
condition or business of Borrower. Borrower has no knowledge of any liabilities,
contingent or otherwise, at such date not reflected in said Financial Sheet, and
Borrower has not entered into any special commitments or substantial contracts
which are not reflected in said Financial Statements, other than in the ordinary
and normal course of its business, which may have a materially adverse effect
upon its financial condition (a "Material Adverse Effect"), operations or
business as now conducted.
2.06 Title to Assets. Borrower has good title to the Collateral, and, except as
set forth in Exhibit 2.06, the same are not subject to any liens or encumbrances
other than those permitted by Section 5.03 hereof.
2.07 Tax Status. Borrower has no liability for any delinquent state, local or
federal taxes other than those being contested in good faith by adequate
proceedings with adequate reserves under GAAP, and, if Borrower has contracted
with any government agency, Borrower has no liability for renegotiation of
profits.
2.08 Trademarks, Patents. Borrower, as of the date hereof, possesses all
necessary trademarks, trade names, copyrights, patents, patent rights, and
licenses to conduct its business as now operated, without any known conflict
with the valid trademarks, trade names, copyrights, patents and license rights
of others.
2.09 Regulation U. None of the proceeds of any Loan shall be used to purchase
or carry margin stock (as defined within Regulation U of the Board of Governors
of the Federal Reserve system).
2.10 ERISA. All defined benefit pension plans as defined in the Employees
Retirement Income Security Act of 1974, as amended ("ERISA"), of Borrower meet,
as of the date hereof, the minimum funding standards of Section 302 of ERISA,
and no Reportable Event or Prohibited Transaction as defined in ERISA has
occurred with respect to any such plan.
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3. CONDITIONS PRECEDENT TO LOAN
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Prior to Bank being obligated to make any Loan pursuant to this Agreement, Bank
must receive all of the following, each of which must be in form and substance
reasonably satisfactory to Bank:
3.01 Security Agreement. Original, executed security agreement(s) covering the
personal property collateral securing the Loan(s).
3.02 Financing Statement. Financing statement(s) executed by Borrower and any
grantor of a security interest.
3.03 Insurance. Borrower shall have delivered to Bank evidence of insurance
coverage required pursuant to that Agreement to Provide Insurance executed by
Borrower, in form, substance, amounts, covering risks and issued by companies
satisfactory to Bank, and, where required by Bank, with Lenders Loss Payable
endorsement in favor of Bank.
3.04 Organizational Documents. Copies of the charter/articles of incorporation,
or similar document as the case may be, of the any Borrower.
3.05 Authorizations. Certified copies of all action taken by any Borrower and
any grantor of a security interest to authorize the execution, delivery and
performance of the Loan Documents.
3.06 Good Standing. Good standing certificates from the appropriate secretary of
state of the state in which Borrower is organized and in each state in which it
is required to be qualified to do business.
3.07 Intercreditor Agreement. Intercreditor Agreement in favor of Bank executed
by the Borrower and The SCA Group, Inc.
3.08 Agreement. This Agreement executed by Borrower.
3.09 Additional Documents. Such other documents as Bank may reasonably deem
necessary.
4. AFFIRMATIVE COVENANTS OF BORROWER
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Borrower agrees that so long as it is indebted to Bank, under borrowings, or
other indebtedness, or so long as Bank has any obligation to extend credit to
Borrower it will, unless Bank shall otherwise consent in writing, which consent
will not be unreasonable withheld:
4.01 Rights and Facilities. Maintain and preserve all rights, franchises and
other authority necessary for the conduct of its business; maintain its
properties, equipment and facilities in good order and repair; ordinary wear and
tear excepted; conduct its business in an orderly manner without voluntary
interruption and, if a corporation or partnership, maintain and preserve its
existence.
4.02 Use of Proceeds. Use the proceeds of the Loans only for purposes specified
in Section 1 of this Agreement.
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4.03 Insurance. Maintain public liability, property damage and workers'
compensation insurance and insurance on all its insurable property against fire
and other hazards with responsible insurance carriers to the extent usually
maintained by similar businesses and/or in the exercise of good business
judgment, and as required by that Agreement to Provide Insurance executed by
Borrower, with the Bank to be shown as Lenders Loss Payee on such policies.
4.04 Taxes and Other Liabilities. Pay and discharge, before the same become
delinquent and before penalties accrue thereon, all taxes, assessments and
governmental charges upon or against it or any of its properties, and all its
other material liabilities at any time existing, except to the extent and so
long as:
(a) The same are being contested in good faith and by appropriate proceedings
in such manner as not to cause any materially adverse effect upon its financial
condition or the loss of any right of redemption from any sale thereunder; and
(b) It shall have set aside on its books reserves (segregated to the extent
required by generally accepted accounting practice) deemed by it to be adequate
with respect thereto.
4.05 Records and Reports. Maintain a standard and modern system of accounting in
accordance with generally accepted accounting principles on a basis consistently
maintained; permit Bank's representatives to have access to, and to examine its
properties, books and records at all reasonable times and upon reasonable notice
during normal business hours; and furnish Bank:
(a) Quarterly Financial Statement. As soon as available, and in any event
within forty-six (46) days after the end of each quarter, Borrower's Form 10-Q
as required to be filed with the Securities and Exchange Commission ("SEC"); (b)
Annual Financial Statement. As soon as available, and in any event within
ninety-one (91) days after and as of the end of each fiscal year of Borrower,
Borrower's 10-K as required to be filed with the SEC;
(c) Officer's Certificate. Within forty-six (46) days after the end of each
quarter and within ninety-one (91) days after the end of each fiscal year of
Borrower, a certificate signed by the Borrower's chief financial officer,
stating that, as of the end of such quarter or fiscal year, as applicable,
Borrower has performed and observed each and every covenant contained in this
Agreement to be performed by it and that no event has occurred and no condition
then exists which constitutes an Event of Default hereunder or would constitute
such an Event of Default upon the lapse of time or upon the giving of notice and
the lapse of time specified herein; or, if any such event has occurred or any
such condition exists, specifying the nature thereof in the form of exhibit
4.05(c) attached hereto.
(d) Audit Reports. Promptly after the receipt thereof by Borrower, copies of
any detailed audit reports submitted to Borrower by independent accountants in
connection with each annual or interim work on the accounts of Borrower made by
such accountants;
(e) Accounts Receivable And Accounts Payable Agings. So long as there exists an
outstanding principal balance under this Agreement, within 15 days from each
month-end, deliver to Bank a detailed accounts receivable aging reconciled to
the general ledger of Borrower, a detailed accounts payable aging reconciled to
the Borrower's general ledger and setting forth the amount of any book overdraft
or the amount of checks issued but not sent. All the foregoing will be in a form
and with such detail as Bank may
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request from time to time. In addition, Borrower will supply a listing of total
Unbilled Accounts by customer that reconciles to Borrower's general ledger.
(f) Borrowing Base Certificate. So long as there exists an outstanding
principal balance under this Agreement, deliver to Bank, within 15 days from
each month-end, a Borrowing Base Certificate in the form of Exhibit B attached
hereto including total sales and cash receipts, and a certificate signed by
Borrower's Chief Financial Officer that lists any known significant disputes
that will cause a delay in billing Unbilled Accounts in excess of $200,000, or
if Applicable, stating that there are no known such disputes.
(g) List of Customers. On a semi-annual basis or more frequently if requested
by Bank, provide Bank with an alphabetized list of customers including
addresses.
(h) Stockholder, Security and Exchange Commission Statements and Reports.
Except as provided under clauses (a) and (b), promptly after the same are
available, copies of all such proxy statements, financial statements and reports
(including its Annual Report to Stockholders) as Borrower shall send to its
stockholders , and copies of all reports which Borrower may file with the SEC.
(i) Other Information. Such other information relating to the affairs of
Borrower as the Bank reasonably may request from time to time.
4.06 Quick Ratio. Maintain on a quarterly basis a quick ratio (defined as the
sum of unencumbered cash, marketable securities, customer receivables (billed
and unbilled) net of any allowance for doubtful accounts divided by total
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current liabilities) of at least 1.25 to 1.00.
4.07 Tangible Net Worth. Maintain on a quarterly basis a Tangible Net Worth
(defined as net book value of assets excluding goodwill and other acquisition
related intangible assets less total liabilities) of not less than Twenty
Million and 00/100 Dollars ($20,000,000.00).
4.08 Debt to Tangible Net Worth. Maintain on a quarterly basis a ratio of total
liabilities (defined as all liabilities for borrowed money, all interest bearing
obligations and all obligations under capital leases) to Tangible Net Worth of
not greater than 0.75 to 1.00.
4.09 Profitability. Maintain profitable operations (meaning a net profit after
taxes) of at least $1.00 on a quarterly basis.
4.10 ERISA. Cause all defined benefit pension plans, as defined in ERISA, of
Borrower to, at all times, meet the minimum funding standards of Section 302 of
ERISA, and ensure that no Reportable Event or Prohibited Transaction, as defined
in ERISA, will occur with respect to any such plan.
4.11 Laws. At all times comply with, or cause to be complied with, all laws,
statues, rules, regulations, orders and directions of any governmental authority
having jurisdiction over Borrower or Borrower's business, noncompliance with
which could reasonably be expected to have a Material Adverse Effect.
4.12 GAAP. Compliance with all financial covenants shall be calculated based on
generally accepted accounting principles applied on a consistent basis as
maintained by Borrower.
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4.13 Operating Accounts. Maintain its primary operating accounts (excluding
accounts owned by Tier Technologies (Australia) Pty. Ltd., ADC Consultants Pty.
Ltd. and Tier Technologies UK, Inc.) and banking relationship with the Bank.
Maintain, or cause to be maintained, on deposit with Bank, non-interest bearing
demand deposit balances sufficient to compensate Bank for all services provided
by Bank. Balances shall be calculated after reduction for the reserve
requirement of the Federal Reserve Board and uncollected funds. Any deficiencies
shall be charged directly to the Borrower on a monthly basis.
4.14 Notices. Promptly notify Bank in writing of (i) the occurrence of any Event
of Default hereunder or any event which upon notice and lapse of time would be
an Event of Default; (ii) all litigation affecting Borrower where the amount is
$5,000,000 or more; any substantial dispute which may exist between Borrower and
any governmental regulatory body or law enforcement authority; any change in
Borrower's name or principal place of business; or any other matter which has
resulted or might result in a material adverse change in Borrower's financial
condition or operations.
4.15 Audits. Permit representatives of Bank to conduct audits of Borrower's
books and records relating to the Accounts, and other Collateral and make
extracts therefrom, with results satisfactory to Bank, provided that while no
Event of Default has occurred and is continuing, such audits shall be conducted
no more often than once every twelve (12) months and provided further that Bank
shall use its best efforts to not interfere with the conduct of Borrower's
business, all under reasonable procedures acceptable to Bank and at Borrower's
sole expense. Notwithstanding any of the provisions contained in Section
1.01(a), 1.01(b) and 1.01(c) hereof, Borrower hereby acknowledges and agrees
that upon completion of any such audit, should Bank observe any increase in
excess of five (5) percent in the dilution (defined as net non-cash reduction of
Accounts) of the Accounts, Bank shall have the right to adjust the Borrowing
Base percentage, in its sole and reasonable discretion, based on its review of
the results of such collateral audit.
4.16 Covenants Relating to Collateral. In addition to any covenants in any Loan
Document relating to any Collateral the Borrower agrees:
(a) To execute and deliver to Bank such assignments, including Bank's standard
forms of Specific or General Assignment covering individual Accounts, notices,
financing statements, and other documents and papers as Bank may require in
order to affirm, effectuate or further assure the assignment to Bank of a
security interest in the Collateral or to give any third party, including the
account debtors obligated on the Accounts, notice of Bank's interest in the
Collateral.
(b) Until Bank exercises its rights to collect the Accounts proceeds pursuant
to Section 4.16(d), Borrower will collect with diligence all Borrower's Accounts
proceeds.
(c) To promptly notify Bank of any attachment or other legal process levied
against any of the Collateral and any information received by Borrower relative
to the Collateral, including the Accounts, the account debtors or other persons
obligated in connection therewith, which may in any way materially and adversely
affect the value of the Collateral or the rights and remedies of Bank in respect
thereto.
(d) Upon the occurrence and during the continuance of an Event of Default, Bank
may at any time, without prior notice to Borrower, collect the Accounts proceeds
and may give notice of assignment to any and all account debtors, and Borrower
does hereby make, constitute and appoint Bank its irrevocable, true and lawful
attorney with power to receive, open and dispose of all mail addressed to
Borrower, to endorse the name of Borrower upon any checks or other evidences of
payment that may come into the possession of Bank upon the Accounts; to endorse
the name of the undersigned upon any
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document or instrument relating to the Collateral; in its name or otherwise, to
demand, xxx for, collect and give acquittances for any and all moneys due or to
become due upon the Accounts; to compromise, prosecute or defend any action,
claim or proceeding with respect thereto; and to do any and all things necessary
and proper to carry out the purpose herein contemplated.
5. NEGATIVE COVENANTS OF BORROWER
Borrower agrees that so long as it is indebted to Bank, or so long as Bank has
any obligation to extend credit to Borrower, it will not, without Bank's written
consent, which consent shall not be unreasonably withheld:
5.01 Type of Business. Make any substantial change in the character of its
business.
5.02 Outside Indebtedness. Except for indebtedness of Tier Technologies
(Australia) Pty. Ltd., create, incur, assume or permit to exist with unrelated
third parties any indebtedness for borrowed moneys other than Loans from the
Bank, Permitted Indebtedness and obligations now existing as shown in Borrower's
Form 10-Q for the quarter ended June 30, 2000, excluding those obligations being
refinanced by Bank, or sell or transfer, either with or without recourse, any
accounts or notes receivable or any moneys due or to become due.
"Permitted Indebtedness" shall mean:
(a) indebtedness existing on the date hereof and disclosed in writing to
Bank;
(b) indebtedness to trade creditors in the ordinary course of business;
(c) indebtedness with respect to equipment leases and indebtedness secured
by Permitted Liens, in an amount not to exceed $5,000,000; and
Extensions, renewals, refundings, refinancings, modifications, amendments and
restatements of any of the items of Permitted Indebtedness (a) through (c)
above, provided that the principal amount thereof is not increased or the terms
thereof are not modified to impose more burdensome terms upon Borrower.
5.03 Liens and Encumbrances. Create, incur, permit to exist, or assume any
mortgage, pledge, encumbrance, lien or charge of any kind upon any asset now
owned or hereafter acquired by it, other than liens for taxes not delinquent and
liens in Bank's favor and other than liens agreed to in writing by Bank and
Permitted Liens.
"Permitted Liens" shall mean:
(a) any liens existing on the date hereof and disclosed in writing to Bank;
(b) liens for taxes, fees, assessments or other governmental charges or
levies, either not delinquent or being contested in good faith by
appropriate proceedings;
(c) liens (i) upon or in any equipment acquired or held by Borrower to
secure the purchase price of such equipment or indebtedness incurred
solely for the purpose of financing the acquisition of such equipment, or
(ii) existing on such equipment at the time of its acquisition, provided
that
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the lien is confined solely to the property so acquired and improvements
thereon, and the proceeds of such equipment;
(d) liens on equipment leased by Borrower pursuant to equipment leases in
the ordinary course of business incurred solely for the purpose of
financing the lease of such equipment (including liens arising from UCC
financing statements regarding leases permitted by this Agreement);
(e) liens arising from judgments, decrees or attachments to the extent and
only so long as such judgment, decree or attachment has not caused or
resulted in an Event of Default;
(f) leases, subleases, licenses and sublicenses, and performance and surety
bonds granted to others in the ordinary course of Borrower's business not
interfering in any material respect with the conduct of the business of
the Borrower or the Collateral;
(g) easements, reservations, rights-of-way, restrictions, minor defects or
irregularities in title and other similar liens affecting real property
not interfering in any material respect with the ordinary conduct of
business of Borrower;
(h) liens incurred or deposits made in the ordinary course of Borrower's
business in connection with worker's compensation, unemployment insurance,
social security and other like laws;
(i) liens in favor of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection with the importation
of goods;
(j) carriers', warehousemen's, materialmen's, mechanics', landlords',
repairmen's, employees' or other like liens arising in the ordinary course
of business which are not delinquent or remain payable without penalty or
which are being contested in good faith by appropriate proceedings;
(k) liens arising solely by virtue of any statutory or common law provision
relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institutions; and
liens incurred in connection with the extension, renewal or refinancing of the
indebtedness secured by liens of the type described in clauses (a) through (k)
above, provided that any extension, renewal or replacement lien shall be limited
to the property encumbered by the existing lien and the principal amount of the
indebtedness being extended, renewed or refinanced does not increase.
5.04 Loans, Investments, Secondary Liabilities. Other than Permitted
Investments, and investments now existing as shown in Borrower's Form 10-Q for
the quarter ended June 30, 2000, make any loans or advances to any person or
other entity other than in the ordinary and normal course of its business as now
conducted or make any investment in the securities of any person or other entity
other than the United States Government; or guarantee or otherwise become liable
upon the obligation of any person or other entity, except for Permitted
Indebtedness and by endorsement of negotiable instruments for deposit or
collection in the ordinary and normal course of its business.
"Permitted Investments" shall mean:
(a) investments made in accordance with Borrower's investment policy as
approved by its Board of Directors, including without limitation
Borrower's stock repurchase program;
(b) extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale, lease or license of goods, property or
services in the ordinary course of business on ordinary trade terms;
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(c) investments consisting of (1) compensation of employees, officers and
directors of Borrower or its Subsidiaries (2) travel advances, employee
relocations loans and other employee loans and advances in the ordinary
course of business, (3) loans to employees, officers and directors
relating to the purchase of equity securities of Borrower or its
Subsidiaries pursuant to employee stock purchase plans approved by the
Board of Directors of Borrower, provided that such loans shall not exceed
$5,000,000 principal at any one time, and (4) loans to Subsidiaries for
general corporate funding purposes in the ordinary course of business;
(d) investments (including debt obligations) received in connection with the
bankruptcy or reorganization of customers and suppliers and in settlement
of delinquent obligations of, and other disputes with, customers or
suppliers arising in the ordinary course of Borrower's business;
(e) investments in joint ventures consisting of the licensing of technology
or the providing of technical support in the ordinary course of Borrower's
business provided there are no liens other than Permitted Liens; and,
(f) investment in Capital stock of subsidiaries
5.05 Acquisition or Sale of Business; Merger or Consolidation. Purchase or
otherwise acquire the assets or business of any person or other entity except
where such transactions (a)(i) would not in the aggregate result in a decrease
of more than 25% of Tangible Net Worth and (ii) no Event of Default has
occurred, is continuing or would exist after giving effect to the transactions;
(b) would not require Borrower to convey an initial purchase price of more than
Two Million Dollars ($2,000,000), whether in cash, stock or other property; or
(c) where such transactions are for entities or assets within or useful in
Borrower's industry; or liquidate, dissolve, merge or consolidate, or commence
any proceedings therefor, provided that, a Subsidiary may merge or consolidate
into another Subsidiary or into Borrower and Borrower may consolidate or become
consolidated with or under any other entity so long as (a) Borrower shall be a
continuing or surviving legal entity and (b) all obligations of Borrower
hereunder shall continue in full force and effect; or sell any assets except in
the ordinary and normal course of its business as now conducted; or sell, lease,
assign, or transfer any substantial part of its business or fixed assets, or any
property or other assets necessary for the continuance of its business as now
conducted, including without limitation the selling of any property or other
asset accompanied by the leasing back of the same.
6. EVENTS OF DEFAULT
-----------------
The occurrence of any of the following events of default ("Events of Default")
shall, at Bank's option, terminate Bank's commitment to lend and make all sums
of principal and interest then remaining unpaid on all Borrower's indebtedness
to Bank immediately due and payable, all without demand, presentment or notice,
all of which are hereby expressly waived:
6.01 Failure to Pay. Failure to pay any installment of principal or of interest
on any indebtedness of Borrower to Bank within five (5) business days of notice
of payment being due.
6.02 Breach of Covenant. Failure of Borrower to perform any other term or
condition of this Agreement or any Loan Document binding upon Borrower.
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6.03 Breach of Warranty. Any of Borrower's representations or warranties made
herein or any statement or certificate at any time given in writing pursuant
hereto or in connection herewith shall be false or misleading in any material
respect.
6.04 Insolvency; Receiver or Trustee. Borrower shall become insolvent; or admit
its inability to pay its debts as they mature; or make an assignment for the
benefit of creditors; or apply for or consent to the appointment of a receiver
or trustee for it or for a substantial part of its property or business.
6.05 Judgments, Attachments. Any money judgment in excess of $5,000,000, writ
or warrant of attachment, or similar process, not covered by insurance or
reserves, shall be entered or filed against Borrower or any of its assets and
shall remain unvacated, unbonded or unstayed for a period of thirty(30) days or
in any event later than fifteen (15) days prior to the date of any proposed sale
thereunder.
6.06 Bankruptcy. Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any bankruptcy law or any law
for the relief of debtors shall be instituted by or against Borrower and, if
instituted against it, shall not be dismissed within thirty (60) days
thereafter.
6.08 Cessation of Business. Borrower shall voluntarily suspend its business.
6.09 Adverse Change. Any change which, in the opinion of Bank, is materially
adverse to the financial condition of Borrower; or should Bank reasonably
believe that the prospect of Borrower's payment or performance hereunder or
under any other agreement or instrument with Bank be materially impaired.
6.10 Other Defaults. Borrower shall commit or do or fail to commit or do any
act or thing which would constitute an event of default under any of the terms
of any other agreement, document or instrument executed or to be executed by it
concerning the obligation to pay money where the amount in default is in excess
of $1,000,000.
6.11 Lien Priority. Subject to Permitted Liens and so long as the Subordination
Agreement shall remain in full force and effect, the Bank fails to have an
enforceable first lien (except for any prior liens to which the Bank has
consented in writing) on or security interest in any property given as security
for this Agreement, including but not limited to, 65% of the stocks of each
subsidiary of Borrower as listed in Section 1.05 herein.
6.12 Advances. Notwithstanding anything to the contrary contained herein, Bank
shall have no duty to make advances while any event of default exists
notwithstanding any cure period provided for herein.
6.13 Right to Cure. If any default, other than a payment default, is curable,
and if Borrower has not been given a prior notice of a breach of the same
provision of this agreement, it may be cured, (and no Event of Default will have
occurred), if Borrower, after Bank sends written notice demanding cure of such
default, (a) cures the default within ten (10) days, or (b) if the cure requires
more than ten (10) days, immediately initiates reasonable steps which Bank
deems, in Bank's sole and reasonable discretion, to be sufficient to cure the
default and thereafter continues and completes all reasonable and necessary
steps sufficient to produce compliance as soon as reasonably practical.
7. MISCELLANEOUS PROVISIONS
------------------------
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7.01 Failure or Indulgence Not Waiver. No failure or delay on the part of Bank
or any holder of notes issued hereunder, in the exercise of any power, right or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. All rights and
remedies existing under this Agreement or any note(s) issued in connection with
a Loan that Bank may make hereunder, are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
7.02 Counterparts; Entire Agreement. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement. This Agreement, and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersedes any prior agreements, written or oral, with respect thereto.
7.03 Attorney's Fees. Borrower will pay promptly to Bank without demand after
notice, with interest thereon from the date of expenditure at the rate
applicable to the Loan, reasonable attorneys' fees and all costs and expenses
paid or incurred by Bank in collecting or compromising the Loan after the
occurrence of an Event of Default, whether or not suit is filed. If suit is
brought to enforce any provision of this Agreement, the prevailing party shall
be entitled to recover its reasonable attorneys' fees and court costs in
addition to any other remedy or recovery awarded by the court.
7.04 Additional Remedies. The rights, powers and remedies given to Bank
hereunder shall be cumulative and not alternative and shall be in addition to
all rights, powers and remedies given to Bank by law against Borrower or any
other person, including but not limited to Bank's rights of setoff or banker's
lien.
7.05 Inurement. The benefits of this Agreement shall inure to the successors
and assigns of Bank and the permitted successors and assigns of Borrower.
7.06 Applicable Law. This Agreement and all other agreements and instruments
required by Bank in connection therewith shall be governed by and construed
according to the laws of the State of California, to the jurisdiction of whose
courts the parties hereby agree to submit.
7.07 Offset. In addition to and not in limitation of all rights of offset that
Bank or other holder of the Loan may have under applicable law, Bank or other
holder of any note issued hereunder shall, upon the occurrence and during the
continuance of any Event of Default or any event which with the passage of time
or notice would constitute such an Event of Default, have the right to
appropriate and apply to the payment of the Loan any and all balances, credits,
deposits, accounts or monies of Borrower then or thereafter with Bank or other
holder, within ten (10) days after the Event of Default, and written notice of
the occurrence of any Event of Default by Bank to Borrower.
7.08 Severability. Should any one or more provisions of the Agreement be
determined to be illegal or unenforceable, all other provisions nevertheless
shall be effective.
7.09 Time of the Essence. Time is hereby declared to be of the essence of this
Agreement and of every part hereof.
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7.10 Accounting. All accounting terms shall have the meanings applied under
generally accepted accounting principles unless otherwise specified.
7.11 Reference Provision.
(a) Other than (i) nonjudicial foreclosure and all matters in connection
therewith regarding security interests in real or personal property; or (ii) the
appointment of a receiver, or the exercise of other provisional remedies (any
and all of which may be initiated pursuant to applicable law), each controversy,
dispute or claim between the parties arising out of or relating to this Credit
Agreement, any security agreement executed by Borrower in favor of Bank or any
note executed by Borrower in favor of Bank or any other agreement or instrument
issued in favor of Bank by Borrower (collectively in this Section, the
"Agreement") which controversy, dispute or claim is not settled in writing
within thirty (30) days after the "Claim Date" (defined as the date on which a
----------
party subject to this Agreement gives written notice to all other parties that a
controversy, dispute or claim exists), will be settled by a reference proceeding
in California in accordance with the provisions of Section 638 et seq. of the
------
California Code of Civil Procedure, or their successor section ("CCP"), which
---
shall constitute the exclusive remedy for the settlement of any controversy,
dispute or claim concerning this Agreement, including whether such controversy,
dispute or claim is subject to the reference proceeding and except as set forth
above, the parties waive their rights to initiate any legal proceedings against
each other in any court or jurisdiction other than the Superior Court in the
County where the Real Property, if any, is located or Los Angeles County if none
(the "Court"). The referee shall be a retired Judge of the Court selected by
-----
mutual agreement of the parties, and if they cannot so agree within forty-five
(45) days after the Claim Date, the referee shall be promptly selected by the
Presiding Judge of the Court (or his representative). The referee shall be
appointed to sit as a temporary judge, with all of the powers for a temporary
judge, as authorized by law, and upon selection should take and subscribe to the
oath of office as provided for in Rule 244 of the California Rules of Court (or
any subsequently enacted Rule). Each party shall have one peremptory challenge
pursuant to CCP ss.170.6. The referee shall (a) be requested to set the matter
for hearing within sixty (60) days after the date of selection of the referee
and (b) try any and all issues of law or fact and report a statement of decision
upon them, if possible, within ninety (90) days of the Claim Date. Any decision
rendered by the referee will be final, binding and conclusive and judgment shall
be entered pursuant to CCP ss.644 in any court in the state of California having
jurisdiction. Any party may apply for a reference proceeding at any time after
thirty (30) days following notice to any other party of the nature of the
controversy, dispute or claim, by filing a petition for a hearing and/or trial.
All discovery permitted by this Agreement shall be completed no later than
fifteen (15) days before the first hearing date established by the referee. The
referee may extend such period in the event of a party's refusal to provide
requested discovery for any reason whatsoever, including, without limitation,
legal objections raised to such discovery or unavailability of a witness due to
absence or illness. No party shall be entitled to "priority" in conducting
discovery. Depositions may be taken by either party upon seven (7) days written
notice, and request for production or inspection of documents shall be responded
to within ten (10) days after service. All disputes relating to discovery which
cannot be resolved by the parties shall be submitted to the referee whose
decision shall be final and binding upon the parties. Pending appointment of the
referee as provided herein, the Superior Court is empowered to issue temporary
and/or provisional remedies, as appropriate.
(b) Except as expressly set forth in this Agreement, the referee shall
determine the manner in which the reference proceeding is conducted including
the time and place of all hearings, the order of presentation of evidence, and
all other questions that arise with respect to the course of the reference
proceeding. All proceedings and hearings conducted before the referee, except
for trial, shall be conducted without a court reporter except that when any
party so requests, a court reporter will be used at any hearing conducted
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before the referee. The party making such a request shall have the obligation to
arrange for and pay for the court reporter. The costs of the court reporter at
the trial shall be borne equally by the parties.
(c) The referee shall be required to determine all issues in accordance with
existing case law and the statutory laws of the state of California. The rules
of evidence applicable to proceedings at law in the state of California will be
applicable to the reference proceeding. The referee shall be empowered to enter
equitable as well as legal relief, to provide all temporary and/or provisional
remedies and to enter equitable orders that will be binding upon the parties.
The referee shall issue a single judgment at the close of the reference
proceeding which shall dispose of all of the claims of the parties that are the
subject of the reference. The parties hereto expressly reserve the right to
contest or appeal from the final judgment or any appealable order or appealable
judgment entered by the referee. The parties hereto expressly reserve the right
to findings of fact, conclusions of laws, a written statement of decision, and
the right to move for a new trial or a different judgment, which new trial, if
granted, is also to be a reference proceeding under this provision.
(d) In the event that the enabling legislation which provides for appointment
of a referee is repealed (and no successor statute is enacted), any dispute
between the parties that would otherwise be determined by the reference
procedure herein described will be resolved and determined by arbitration. The
arbitration will be conducted by a retired judge of the Court, in accordance
with the California Arbitration Act, ss.1280 through ss.1294.2 of the CCP as
amended from time to time. The limitations with respect to discovery as set
forth hereinabove shall apply to any such arbitration proceeding.
7.12 This Agreement may be modified only by a writing signed by all parties
hereto.
This Agreement is executed on behalf of the parties by duly authorized officers
as of the date first above written.
Imperial Bank Tier Technologies, Inc.
A California Banking corporation A California Corporation
By: /s/ Xxxxxx X. XxXxxxxx By: /s/ Xxxxx X. XxXxxx
------------------------------ ----------------------------
Xxxxxx X. XxXxxxxx Xxxxx X. XxXxxx
Senior Vice President Chief Financial Officer
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