exv4w2






Exhibit 4.2




THIRD AMENDED AND RESTATED

CREDIT AGREEMENT




By and Between




TYLER TECHNOLOGIES, INC.




and




BANK OF TEXAS, N.A.

as Lender




Dated as of October 19, 2009




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	ARTICLE II THE CREDIT facility
	 	 	13	 
	Section 2.1. Commitment
	 	 	13	 
	Section 2.2. Borrowing Procedure
	 	 	14	 
	ARTICLE III INTEREST RATE PROVISIONS
	 	 	16	 
	Section 3.1. Interest Rate Determination
	 	 	16	 
	Section 3.2. Additional Interest Rate Provisions
	 	 	17	 
	ARTICLE IV PREPAYMENTS AND OTHER PAYMENTS
	 	 	18	 
	Section 4.1. Required Payments
	 	 	18	 
	Section 4.2. Optional Prepayments
	 	 	18	 
	Section 4.3. Notice of Payments
	 	 	18	 
	Section 4.4. Place of Payment or Prepayment
	 	 	19	 
	Section 4.5. No Prepayment Premium or Penalty
	 	 	19	 
	Section 4.6. Increased Costs
	 	 	19	 
	Section 4.7. Taxes
	 	 	20	 
	Section 4.8. Reduction or Termination of the Commitment
	 	 	21	 
	Section 4.9. Payments on Business Day
	 	 	21	 
	ARTICLE V
	 	 	21	 
	Section 5.1. Commitment Fees
	 	 	21	 
	Section 5.2. Fees Not Interest; Nonpayment
	 	 	22	 
	ARTICLE VI
	 	 	22	 
	Section 6.1. Organization and Qualification; Subsidiaries
	 	 	22	 
	Section 6.2. Authorization
	 	 	23	 
	Section 6.3. No Conflicts
	 	 	23	 
	Section 6.4. Enforceability
	 	 	23	 
	Section 6.5. Accuracy of Information; No Material Adverse Change
	 	 	23	 
	Section 6.6. Taxes
	 	 	23	 
	Section 6.7. Litigation and Other Proceedings
	 	 	24	 
	Section 6.8. No Defaults
	 	 	24	 
	Section 6.9. Solvency
	 	 	24	 
	Section 6.10. Representations and Warranties
	 	 	24	 
	Section 6.11. Margin Regulations
	 	 	24	 
	Section 6.12. Licenses, Permits, Trademarks, etc.
	 	 	24	 
	Section 6.13. Compliance with Governmental Requirements
	 	 	24	 
	Section 6.14. ERISA
	 	 	25	 
	Section 6.15. Title to Properties
	 	 	25	 
	Section 6.16. Burdensome Contracts
	 	 	25	 
	ARTICLE VII
	 	 	25	 
	Section 7.1. Conditions to Initial Advance
	 	 	25	 
	Section 7.2. Conditions to each Loan, Continuation or Conversion
	 	 	27	 
	ARTICLE VIII
	 	 	28	 
	Section 8.1. Financial Statements and Information
	 	 	28	 
	Section 8.2. Maintenance of Existence and Good Standing
	 	 	29	 






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TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	Section 8.3. Compliance With Governmental Requirements
	 	 	29	 
	Section 8.4. Payment of Obligations
	 	 	29	 
	Section 8.5. Notification of Material Adverse Change
	 	 	29	 
	Section 8.6. Notification of Defaults
	 	 	30	 
	Section 8.7. Notification of Exchange Act Filings
	 	 	30	 
	Section 8.8. Notification of Proceedings Affecting Collateral
	 	 	30	 
	Section 8.9. Additional Information
	 	 	30	 
	Section 8.10. Books and Records
	 	 	30	 
	Section 8.11. Insurance
	 	 	31	 
	Section 8.12. Deposit Relationship
	 	 	31	 
	Section 8.13. Collateral Audit
	 	 	31	 
	ARTICLE IX
	 	 	31	 
	Section 9.1. Debt
	 	 	31	 
	Section 9.2. Liens
	 	 	32	 
	Section 9.3. Organizational Documents
	 	 	32	 
	Section 9.4. No Subsidiaries
	 	 	32	 
	Section 9.5. Dividends
	 	 	32	 
	Section 9.6. Acquisitions
	 	 	32	 
	Section 9.7. Mergers, Consolidations, etc.
	 	 	32	 
	Section 9.8. Change of Name
	 	 	33	 
	Section 9.9. Financial Covenants
	 	 	33	 
	Section 9.10. Investments
	 	 	33	 
	Section 9.11. Subordinated Debt; Seller Note
	 	 	33	 
	Section 9.12. Character of Business
	 	 	33	 
	ARTICLE X
	 	 	33	 
	Section 10.1. Events of Default
	 	 	33	 
	Section 10.2. Remedies
	 	 	35	 
	Section 10.3. Certain Other Remedial Matters
	 	 	35	 
	ARTICLE XI
	 	 	35	 
	Section 11.1. Waivers, Etc.
	 	 	36	 
	Section 11.2. Reimbursement of Expenses
	 	 	36	 
	Section 11.3. Venue
	 	 	36	 
	Section 11.4. Notices
	 	 	37	 
	Section 11.5. GOVERNING LAW
	 	 	37	 
	Section 11.6. Survival of Representations, Warranties and Covenants
	 	 	37	 
	Section 11.7. Counterparts; Execution by Facsimile Transmission
	 	 	37	 
	Section 11.8. Separability
	 	 	38	 
	Section 11.9. Descriptive Headings
	 	 	38	 
	Section 11.10. Setoff
	 	 	38	 
	Section 11.11. Successors and Assigns; Participations
	 	 	38	 
	Section 11.12. Interest
	 	 	39	 
	Section 11.13. Indemnification
	 	 	39	 
	Section 11.14. Payments Set Aside
	 	 	41	 
	Section 11.15. Amendments, Etc.
	 	 	41	 






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TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	Section 11.16. Relationship of the Parties
	 	 	41	 
	Section 11.17. Certain Matters of Construction
	 	 	42	 
	Section 11.18. USA Patriot Act Notice
	 	 	42	 
	Section 11.19. FINAL AGREEMENT
	 	 	42	 







iii











 





THIRD AMENDED AND RESTATED

CREDIT AGREEMENT




     Tyler Technologies, Inc. a Delaware corporation (“Borrower”) and Bank of Texas, N.A.,
a national banking association (“Lender”), hereby agree as follows:



WITNESSETH:




     WHEREAS, Borrower and Lender entered into that certain Second Amended and Restated Credit
Agreement dated October 20, 2008 (the “Existing Agreement”), in which Bank of Texas
committed to provide a revolving credit loan and a letter of credit facility to Borrower; and



     WHEREAS, the maturity date under the Existing Agreement is October 19, 2009; and



     WHEREAS, Borrower has requested that Lender renew and extend the letter of credit and
revolving credit loan to Borrower; and



     WHEREAS, Lender has agreed to such request on the terms and conditions herein contained.



     NOW, THEREFORE, in consideration of the mutual covenants herein contained, and for other
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:



ARTICLE I




DEFINITIONS




     As used herein, the following words and terms shall have the respective meanings indicated
opposite each of them:



     “Accounts Receivable” shall mean all of Borrower’s and Guarantors’ accounts,
instruments, contract rights, chattel paper, documents, and general intangibles arising from the
sale of goods and/or the rendition of services by Borrower or any Guarantor in the ordinary course
of business, and the proceeds thereof and all security and guaranties therefor, whether now
existing or hereafter created, and all returned, reclaimed or repossessed goods, and all books and
records pertaining to the foregoing.



     “Acquisition” shall mean any transaction or series of related transactions in which
Borrower acquires all or substantially all of the stock or other equity interests in, or all or
substantially all of the assets of, any Person or, in the case of a Person that is a corporation or
other business entity, any division thereof.



     “Additional Costs” shall mean, with respect to any Rate Period in the case of any
LIBOR Rate Portion, all costs, losses or payments, as reasonably determined by Lender in its sole
and absolute discretion, that Lender incurs, suffers or makes by reason of any increase in the cost
to Lender of agreeing to make or making, funding or maintaining any LIBOR Rate Portion because



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — TYLER TECHNOLOGIES,
INC.




Page 1









 







of or arising from (a) the introduction of, or any change in or in the interpretation or
administration of, any law or regulation or (b) the compliance with any request from any central
bank or other Governmental Authority (whether or not having the force of law).




     “Adjusted LIBOR Rate” shall mean with respect to a LIBOR Rate Portion on the first day
of the Rate Period, a rate per annum equal to the sum of (a) the quotient of (i) the LIBOR Rate on
the first day of the Rate Period, divided by (ii) the remainder of 1.00 minus the LIBOR Reserve
Requirement, if any, on the first day of the Rate Period, plus (b) the FDIC Percentage in effect on
first day of the Rate Period, together with any additional impositions, assessments, fees or
surcharges that may be imposed on Lender (expressed as a percentage), to the extent such
impositions, assessments, fees or surcharges are not reflected in the FDIC Percentage or the LIBOR
Reserve Requirement and are generally imposed on banks with capitalization and supervisory risk
factors comparable to Lender, plus (c) the Applicable Margin.



     “Advance” means a borrowing under the Revolving Commitment, (a) made by Lender on a
Borrowing Date, or (b) converted or continued by Lender on the same date of conversion or
continuation, consisting, in either case, of the aggregate amount of Advances of the same Type and
for the same Rate Period.



     “Affiliate” shall mean any Person controlled by, controlling or under common control
with Borrower.



     “Agreement” shall mean this Third Amended and Restated Credit Agreement, as the same
may be amended, modified or supplemented from time to time.



     “Applicable Margin” means the margin related to Base Rate Portions or LIBOR Rate
Portions, as applicable, as set forth in Schedule I attached hereto.



     “Authorized Officer” shall mean, as to any Person, the Chairman, the President, Chief
Executive Officer, Chief Financial Officer, Vice President, Treasurer or other officer duly
authorized by the board of directors of such Person.



     “Bankruptcy Code” shall mean the United States Bankruptcy Code of 1978, as amended,
and any successor statute.



     “Base Rate” means (a) WSJ Prime, minus (b) the Applicable Margin.



     “Base Rate Portion” shall mean any Loan which bears interest at the Base Rate.



     “Borrower” shall have the meaning set forth in the first paragraph of this Agreement.



     “Borrowing Date” shall mean a date upon which Borrower has an Advance delivered
pursuant to Section 2.2(a) or a Letter of Credit issued pursuant to Section 2.2(b).



     “Business Day” shall mean a day when Lender is open for business, provided that, if
the applicable Business Day relates to any LIBOR Rate Portion, it shall mean a day when Lender is
open for business and on which commercial banks are open for international business (including
dealings in Dollar deposits) in London.



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — TYLER TECHNOLOGIES, INC.




Page 2









 








     “Capital Expenditures” means, for the preceding two (2) fiscal quarters, multiplied by
(2), the expenditures of any Person which are capitalized on the balance sheet of such Person in
accordance with GAAP (including that portion of Capitalized Lease Obligations which should be
capitalized on a balance sheet of such Person in accordance with GAAP) and which are made in
connection with the purchase, construction or improvement of items properly classified on such
balance sheet as property, plant, equipment or other fixed assets or intangibles.



     “Capitalized Lease” means, as to any Person, a lease of (or other agreement conveying
the right to use) real and/or personal property to such Person as lessee, with respect to which the
obligations of such Person to pay rent or other amounts are required to be classified and accounted
for as a capital lease on a balance sheet of such Person in accordance with GAAP (including
Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board).



     “Capitalized Lease Obligations” means, as to any Person, the obligation of such Person
to pay rent or other amounts under a Capitalized Lease and, for purposes of this Agreement, the
amount of such obligation shall be the capitalized amount thereof, determined in accordance with
GAAP.



     “Cash Collateralize” shall have the meaning set forth in Section 2.2(d)(iii).



     “Cash Peg” means the cash peg for working capital which equals $4,000,000, at all
times.



     “Closing Date” shall mean the date on which each of the conditions set forth in
Section 7.1 have been satisfied.



     “Code” shall mean the Internal Revenue Code of 1986, as amended, as now or hereafter
in effect, together with all regulations, rulings and interpretations thereof or thereunder issued
by the Internal Revenue Service.



     “Collateral” shall have the meaning set forth in the Security Agreements, the Pledge
Agreements and any other Loan Document which grants a Lien in favor of Lender as security for the
Obligations.



     “Contingent Obligation” shall mean, with respect of any Person, any obligation of such
Person guaranteeing or intended to guarantee any Debt or other obligation (the “primary
obligation”) of any other Person (the “primary obligor”) in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person, whether or not
contingent, (a) to purchase any such primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of such primary obligation
or (d) otherwise to assure or hold harmless the owner of any such primary obligation against loss
in respect thereof; provided, that notwithstanding the foregoing, the term Contingent Obligation
shall not include endorsements of instruments for deposit or collection in the ordinary



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — TYLER TECHNOLOGIES, INC.




Page 3









 







course of
business. The amount of any Contingent Obligation of any Person shall be the amount
of the primary obligation or such lesser amount to which the maximum exposure of such Person
shall have been specifically limited.




     “Contribution Agreement” means the contribution agreement, if any, to be executed by
each Guarantor in favor of the other Guarantors and approved by Lender, as required by this
Agreement and as it may from time to time be renewed, extended, amended and restated.



     “Conversion/Continuation Date” shall have the meaning set forth in Section 3.1(b).



     “Credit Period” shall mean the period commencing on the Closing Date and ending on the
Maturity Date, or such earlier date of termination of Lender’s obligation to make Advances or issue
Letters of Credit hereunder.



     “Current Maturities” shall mean, with respect to any Person, on any date of
calculation, the current liabilities of such Person attributable to the principal portion of its
long-term debt, determined in accordance with GAAP for the coming twelve (12) months.



     “Debt” shall mean, with respect to any Person at any time, without duplication, (a)
indebtedness for borrowed money or for the deferred purchase price of property or services
purchased, excluding trade accounts payable within 120 days after the creation thereof, (b) all
indebtedness of others for borrowed money or for the deferred purchase price of property or
services secured by a Lien on any property owned by such Person, whether or not such indebtedness
has been assumed by such Person, (c) Capitalized Lease Obligations, (d) all obligations payable out
of the proceeds of production from property of such Person, whether or not the obligation secured
thereby shall have been assumed by such Person, and (e) Contingent Obligations of such Person.



     “Default” shall mean any of the events specified in Section 10.1, whether or not there
has been satisfied any requirement in connection with such event for the giving of notice, or the
lapse of time, or the happening of any further condition, event or act.



     “Dollars” and “$” shall mean lawful currency of the United States of America.



     “Distribution” by any Person, shall mean (a) with respect to any stock issued by such
Person or any partnership or joint venture interest of such person, the retirement, redemption,
repurchase, or other acquisition for value of such stock, partnership or joint venture interest,
(b) the declaration or payment (without duplication) of any dividend or other distribution, whether
monetary or in kind, on or with respect to any stock, partnership or joint venture of any Person,
and (c) any other payment or distribution of assets of a similar nature or in respect of an equity
investment.



     “EBITDA” shall mean, based on trailing two quarters, multiplied by two (2), determined
in accordance with GAAP for Borrower and its Subsidiaries on a consolidated basis, the sum of net
income, less income or plus loss from discontinued operations and extraordinary items, plus income
taxes, plus depreciation, plus amortization, plus interest expense, plus any other non-cash
expenses, each as deducted in determining such net income. The calculation of EBITDA shall



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — TYLER TECHNOLOGIES, INC.




Page 4









 







include
any new Subsidiary acquired by Borrower in an Acquisition, as long as Lender has received and
reviewed audited consolidated financial statements for such Subsidiary, and all notes thereto, including a balance sheet and statements of income, retained earnings and cash
flows, all prepared in conformity with GAAP on a consolidated basis and accompanied by a report and
unqualified opinion of an independent certified public accountants satisfactory to Lender stating
that such accountants have conducted audits of such financial statements in accordance with
generally accepted auditing standards and that, in their opinion, such financial statements present
fairly, in all material respects, such new Subsidiary’s financial position as of their date and the
results of such new Subsidiary’s operations and cash flows for the period covered, in conformity
with GAAP. The calculation of EBITDA may include any new Subsidiary without the audited financial
statements and opinion required by the preceding sentence only with the express written consent of
Lender.




     “Environmental Laws” shall mean any and all Governmental Requirements relating to:
(a) the environment, which includes, without limitation, ambient air, surface water, ground water,
land surface or subsurface strata; (b) emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or wastes into the
environment; or (c) otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants, chemicals or
industrial, toxic or hazardous substances or wastes.



     “ERISA” shall have the meaning set forth in Section 6.14.



     “Event of Default” shall mean any of the events specified in Section 10.1, provided
that there has been satisfied any requirement in connection with such event for the giving of
notice, or the lapse of time, or the happening of any further condition, event or act.



     “Expiration Date” shall mean the last day of a Rate Period.



     “FDIC Percentage” shall mean, on any day, the net assessment rate (expressed as a
percentage rounded to the next highest 1/100 of 1%), if any, which is in effect on such day (under
the regulations of the Federal Deposit Insurance Corporation or any successor) for determining the
assessments paid by Lender to the Federal Deposit Insurance Corporation (or any successor) for
insuring Eurocurrency deposits made in Dollars at Lender’s principal offices. Each determination
of said percentage made by Lender shall, in the absence of manifest error, be binding and
conclusive.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank on
the Business Day next succeeding such day; provided that (a) if such day is not a Business
Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be
the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to
Lender on such day on such transactions as determined by the Lender.



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — TYLER TECHNOLOGIES, INC.




Page 5









 








     “Fixed Charge Coverage” shall mean the ratio of (i) EBITDA, less cash paid for Taxes
for the preceding two (2) quarters multiplied by two (2), and less Capital Expenditures
(excluding such Capital Expenditures identified on Schedule II incurred on or before September
30, 2009), to (ii) the sum of Current Maturities, plus Interest Expense, plus the Current
Maturities of Capitalized Lease Obligations (without duplication of Interest Expense) plus Phantom
Amortization.



     “Funded Debt” shall mean all outstanding liabilities for borrowed money and other
interest-bearing liabilities, including current and long-term Debt, and unfunded commitments under
any outstanding letters of credit, excluding Cash Collateralized Letters of Credit.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board, which
principles are applicable to the circumstances in question as of the date of determination, except
as to the financial statements delivered pursuant to Section 8.1(b), subject to (a) changes
resulting from year-end adjustments and (b) any non-conformity with such generally accepted
accounting principles as a result of the absence of any footnotes required by such generally
accepted accounting principles.



     “Governmental Authority” shall mean any government, any state or other political
subdivision thereof, or any Person exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.



     “Governmental Requirement” means any law, statute, code, ordinance, order, rule,
regulation, judgment, decree, injunction, writ, edict, franchise, permit, certificate, license,
award, authorization or other direction, guideline, or requirement of any Governmental Authority,
including, without limitation, any requirement under common law.



     “Guarantor” shall mean each Subsidiary executing a Guaranty of the Obligations in
favor of Lender.



     “Guaranty” shall mean the continuing guaranty of payment and performance of the
Obligations, to be executed by each existing Guarantor in favor Lender pursuant to Section 9.4, as
it may from time to time be renewed, extended, amended or restated.



     “Highest Lawful Rate” shall mean, with respect to Lender, the maximum non-usurious
interest rate, if any, that at any time or from time to time may be contracted for, taken,
reserved, charged, or received with respect to the Loan and Note or on other amounts, if any, due
to Lender pursuant to this Agreement or any other Loan Document, under laws applicable to Lender
which are presently in effect, or, to the extent allowed by law, under such applicable laws which
may hereafter be in effect and which allow a higher maximum non-usurious interest rate than
applicable laws now allow. At all times, if any, as Chapter 303 (“Chapter 303”) of the Texas
Finance Code, shall establish the Highest Lawful Rate for any purpose under this Agreement or any
other Loan Document, the Highest Lawful Rate shall be the “indicated rate ceiling” as defined in
Chapter 303 from time to time in effect. To the extent required by applicable law in determining
the Highest Lawful Rate with respect to Lender as of any date,



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — TYLER TECHNOLOGIES, INC.




Page 6









 







there shall be taken into account
the aggregate amount of all payments and charges theretofore
charged, reserved or received by Lender hereunder or under the other Loan Documents which
constitute or are deemed to constitute interest under applicable law.




     “incur” (including the correlative terms “incurred,” “incurring,” “incurs” and
“incurrence”), when used with respect to any Debt, shall mean create, incur, assume, guarantee or
in any manner become liable in respect of such Debt.



     “Indemnified Parties” shall have the meaning set forth in Section 11.13.



     “Interest Expense” shall mean for the previous two (2) quarters multiplied by two (2),
without duplication, the aggregate of all interest expense, all prepayment charges and all
amortization of debt discount and expense, including, without limitation, all net amounts payable
(or receivable) under Interest Rate Agreements and all interest expense attributable to Capitalized
Leases, in each instance determined in accordance with GAAP.



     “Interest Payment Date” shall mean (a) as to any Base Rate Portion, the fifteenth of
each month, beginning with November 15, 2009 (or if any such date is not a Business Day, then the
next succeeding Business Day); (b) as to any LIBOR Rate Portion in which the Rate Period with
respect thereto is one month, the date on which such Rate Period ends; and (c) as to any LIBOR Rate
Portion in which the Rate Period with respect thereto is greater than one month, the date on which
each month during such Rate Period ends, and the date on which such Rate Period ends.



     “Interest Rate Agreement” shall mean an interest rate swap agreement, interest rate
cap agreement or similar arrangement.



     “Investment” means, as applied to any Person, any direct or indirect purchase or other
acquisition by such Person of stock or other securities of any other Person, or any direct or
indirect loan, advance or capital contribution by such Person to any other Person, or any other
item which would be classified as an “investment” on a balance sheet of such Person prepared in
accordance with GAAP, including any direct or indirect contribution by such Person of property or
assets to a joint venture, partnership or other business entity in which such Person retains an
interest.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



     “Lender” shall have the meaning set forth in the first paragraph of this Agreement.



     “Letter of Credit” shall mean a letter of credit issued for the account of Borrower
(or a Guarantor designated by Borrower) upon application by Borrower pursuant to Section 2.2(b) and
the other terms and conditions of this Agreement.



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — TYLER TECHNOLOGIES, INC.





Page 7









 








     “Letter of Credit Commitment” shall mean the obligation of Lender to issue Letters of
Credit pursuant to this Agreement in an aggregate amount of principal outstanding at any time not
to exceed $10,000,000, as the same may be increased with the express written consent of Lender or
decreased pursuant to the terms of this Agreement.



     “Letter of Credit Exposure” shall mean the aggregate of the undrawn portion of each
Letter of Credit outstanding at any time.



     “Letter of Credit Expiration Date” shall mean the date that is 364 days from the date
of this Agreement.



     “Letter of Credit Margin” shall mean the fee applicable to Letters of Credit as set
forth on Schedule I hereto.



     “LIBOR Rate” shall mean the rate of interest determined by Lender at which deposits in
Dollars for the relevant Rate Period and comparable in amount to the LIBOR Rate Portion in question
are offered based on information presented on the Telerate Screen as of 11:00 A.M. (London time) on
the day which is two (2) Business Days prior to the first day of such Rate Period; provided, that
if at least two such offered rates appear on the Telerate Screen in respect of such Rate Period,
the arithmetic mean of all such rates (as determined by Lender) will be the rate used; provided,
further, that if Telerate ceases to provide LIBOR quotations, such rate shall be the average rate
of interest determined by Lender at which deposits in Dollars are offered for the relevant Rate
Period by Lender (or its successor) to banks with combined capital and surplus in excess of
$500,000,000 in the London interbank market as of 11:00 A.M. (London time) on the first day of such
Rate Period.



     “LIBOR Rate Portion” shall mean that portion or portion of the Loan which bears
interest at the Adjusted LIBOR Rate.



     “LIBOR Reserve Requirement” shall mean, on any day, that percentage (expressed as a
decimal fraction) which is in effect on such date, if any, as provided by the Federal Reserve
System for determining the maximum reserve requirements generally applicable to financial
institutions regulated by the Federal Reserve Board comparable in size and type to Lender
(including, without limitation, basic supplemental, marginal and emergency reserves) under
Regulation D with respect to “Eurocurrency liabilities” as currently defined in Regulation D, or
under any similar or successor regulation with respect to Eurocurrency liabilities or Eurocurrency
funding (or, if reserves for Eurocurrency liabilities are not separately stated in such
regulations, the other applicable category of liabilities which includes deposits by reference to
which the interest rate on a LIBOR Rate Portion is determined). Each determination by Lender of
the LIBOR Reserve Requirement, shall, in the absence of manifest error, be conclusive and binding.



     “Lien” shall mean (a) any interest in property (whether real, personal or mixed and
whether tangible or intangible) which secures the payment of Debt or an obligation owed to, or a
claim by, a Person other than the owner of such property, whether such interest is based on the
common law, statute or contract, including, without limitation, any such interest arising from (and
irrespective of whether created by such owner or another Person) a mortgage, charge,



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pledge, security agreement, conditional sale, Capitalized Lease or trust receipt, or arising
from a lease, consignment or bailment given for security purposes, and (b) any exception to or
defect in the title to or ownership interest in such property, including, without limitation,
reservations, rights of entry, possibilities of reverter, encroachments, easements, rights of way
and restrictive covenants (other than minor exceptions to or irregularities in the title or
ownership interest in such property which do not materially impair the use of such property for its
intended purpose).




     “Loan” shall mean the revolving line of credit in the maximum amount of the Revolving
Commitment and the letter of credit facility in the maximum amount of the Letter of Credit
Commitment, each to be funded by Lender to Borrower pursuant to the term of this Agreement as the
same may be renewed or extended or increased (with the prior written consent of Lender) from time
to time.



     “Loan Documents” shall mean this Agreement, the Note, the Guaranties, the Security
Agreements, and all instruments, certificates and agreements now or hereafter executed or delivered
to Lender pursuant to any of the foregoing and the transactions connected therewith, and all
amendments, modifications, renewals, extensions, increases and rearrangements of, and substitutions
for, any of the foregoing.



     “Material Adverse Effect” shall mean any material adverse effect on (a) the financial
condition, business, properties, assets, or operations of Borrower and its Subsidiaries on a
consolidated basis, (b) the ability of Borrower and the Guarantors, on a consolidated basis, to
repay the Obligations, (c) the ability of Borrower or any Guarantor to perform on a timely basis
any other obligations under this Agreement or any other Loan Document to which it is a party, (d)
the validity or enforceability of any Loan Document or (e) the rights and remedies of Lender under
any Loan Document.



     “Maturity Date” shall mean October 18, 2010.



     “Moody’s” shall mean Moody’s Investors Service, Inc. and any successor thereto.



     “Mortgage” shall mean the mortgage or deed of trust executed by Borrower to or for the
benefit of Lender, evidencing the lien granted by Borrower to or for the benefit of Lender in the
real property more particularly set forth therein securing the Obligations.



     “Net Cash Position” means unrestricted cash minus the Cash Peg minus Funded Debt, but
in no event less than zero.



     “Note” shall mean the promissory note or notes executed by Borrower in favor of Lender
evidencing the obligation to repay the Loan, substantially in the form of Exhibit A,
together with any renewals, extensions, modifications or amendments of the forgoing.



     “Notice of Borrowing” shall have the meaning set forth in Section 2.2(a).



     “Notice of Rate Change/Continuation” shall have the meaning set forth in Section
3.1(b).



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     “Obligations” shall mean the Loan and all of the other obligations of Borrower and the
Subsidiaries now or hereafter existing under the Loan Documents, whether for principal, interest,
fees, expenses, indemnification or otherwise.



     “Officer’s Certificate” shall mean a certificate signed in the name of Borrower by an
Authorized Officer.



     “Other Taxes” shall have the meaning set forth in Section 4.7(b).



     “PBGC” shall have the meaning set forth in Section 6.14.



     “Permitted Acquisition” shall mean an Acquisition which is agreed to by Borrower and
the other party thereto with respect to which (a) the consideration paid by Borrower or any
Subsidiary (whether in cash, by issuance of Subordinated Debt permitted under Section 9.1, by
issuance of stock, by assumption of Debt or otherwise and including the value of any management,
consulting, purchase or required performance agreement by Borrower or any Subsidiary in connection
therewith), does not exceed, (i) for any single Acquisition, $10,000,000, (ii) in the aggregate for
all Acquisitions from the date hereof through the remainder of Borrower’s fiscal year 2009,
$10,000,000, and (iii) in the aggregate for all Acquisitions in any given fiscal year, beginning
with Borrower’s fiscal year 2010, $20,000,000, and (b) Borrower has caused to be subordinate to the
payment of the Obligations and unsecured, any Debt Borrower issues in connection with such
Acquisition, and (c) Borrower has paid any Debt assumed in connection with such Acquisition unless
such Debt is permitted under Section 9.1.



     “Permitted Distribution” shall mean, with respect to the stock of Borrower, the
repurchase of such stock by Borrower in an aggregate amount not to exceed (a) $5,000,000 from the
date hereof through the remainder of Borrower’s fiscal year 2009, and (b) beginning with Borrower’s
fiscal year 2010, and for each fiscal year of Borrower thereafter, (i) $15,000,000, plus (ii) the
lesser of (1) $15,000,000, or (2) Borrower’s Net Cash Position. At no time shall Borrower use more
than $15,000,000 in proceeds obtained under the Revolving Commitment to repurchase Borrower’s
stock. The amount of Borrower’s Net Cash Position shall be as reported at the end of each of
Borrower’s fiscal quarters and the limitation related thereto shall be applicable to Borrower’s
fiscal quarter immediately following the reported fiscal quarter.



     “Permitted Investments” shall mean (a) obligations, with a maturity of less than two
years, with the full faith and credit of the United States of America, (b) direct obligations of
any state of the United States, or municipality therein, rated in one of the two top
classifications by S&P or Moody’s and maturing within one year from date of acquisition, (c)
certificates of deposit, eurodollar time deposits or banker’s acceptances, maturing within two
years from date of acquisition, issued by (1) Lender, or (2) any United States commercial bank
having capital, surplus and undivided profits aggregating not less than $100 million and whose (or
whose parent corporation’s) unsecured long-term debt is rated in one of the two top classifications
by S&P or Moody’s, (d) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (b) and (c) above entered into with any
financial institution meeting the qualifications specified in clause (c) above, (e) commercial
paper of any United States corporation with a maturity of less than 270 days from date of
acquisition and which is rated in one of the two top classifications by S&P or Moody’s, (f)
indebtedness of any



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United States corporation with a maturity of less than 270 days from date of acquisition and
which is (1) evidenced by bonds, notes, debentures or other instruments issued and authenticated
under an indenture qualified under the Trust Indenture Act of 1939, as amended, and (2) rated in
one of the two top classifications by S&P or Moody’s, (g) investments in money market or mutual
funds at least ninety percent (90%) of the assets of which constitute Dollars or investments in
securities of the type described in clauses (a) through (f) above (without regard to maturities),
(h) Investments in money market or mutual funds (other than those described in clause (g) above)
acquired through and maintained in an account with Lender or any Person controlled by, controlling
or under common control with Lender, (i) Investments in wholly-owned Subsidiaries of Borrower, so
long as Borrower has complied with the requirements of Section 9.4 with respect thereto, (j)
expense advances to employees in the ordinary course of business for travel and lodging not to
exceed $100,000 in the aggregate at any time outstanding, (k) Investments in demand deposit
accounts maintained with FDIC member banks, and (l) Investments outstanding on the date of this
Agreement that are disclosed in Schedule 9.10.




     “Person” shall mean an individual, partnership, joint venture, corporation, limited
liability company, joint stock company, bank, trust, unincorporated organization and/or a
government or any department or agency thereof.



     “Phantom Amortization” the payments of principal that would be due during the twelve
(12) months immediately following the applicable calculation period, assuming (i) a loan balance
equal to the outstanding balance of the Revolving Commitment on the last day of the calculation
period, and (ii) amortization of such principal indebtedness over a three (3) year amortization
period.



     “Pledge Agreement” shall mean the Pledge Agreement or Pledge Agreements executed by
Borrower and any applicable Subsidiary, by which Borrower or such applicable Subsidiary pledges to
Lender a security interest in all of the stock or other equity interests of the Subsidiaries.



     “Rate Period” shall mean the period of time for which the LIBOR Rate shall be in
effect as to any LIBOR Rate Portion which shall be a one, two or three month period of time,
commencing with the Borrowing Date or the Expiration Date of the immediately preceding Rate Period,
as the case may be, applicable to and ending on the effective date of any rate change or rate
continuation made as provided in Section 3.1(b) as Borrower may specify in a Notice of Borrowing or
Notice of Rate Change/Continuation, subject, however, to the early termination provisions of
Section 3.2(a) relating to any LIBOR Rate Portion; provided, however, that: (i) any Rate Period
which would otherwise end on a day which is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in another calendar month, in which case
such Rate Period shall end on the next preceding Business Day, and (ii) no Rate Period shall extend
beyond the Maturity Date.



     “Revolving Commitment” shall mean the obligation of Lender to make Advances or issue
Letters of Credit pursuant to this Agreement in an aggregate amount of principal outstanding at any
time not to exceed $25,000,000, as the same may be increased with the express written consent of
Lender or decreased pursuant to the terms of this Agreement.



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     “S&P” shall mean Standard & Poor’s Rating Group and any successor thereto.



     “Security Agreements” shall mean (a) that certain Amended and Restated Security
Agreement, dated as of October 20, 2008 executed by Borrower in favor of Lender, as amended from
time to time, and (b) any Security Agreement executed by a Subsidiary in favor of Lender.



     “Subordinated Debt” shall mean any Debt of Borrower (a) unsecured, and (b)
subordinated to payment of the Obligations in form and substance satisfactory to Lender.



     “Subsidiary” shall mean any corporation, partnership, limited liability company, joint
venture, association, bank or other business entity of which 50% or more of the total voting power
of shares of stock or other indicia of equity rights entitled to vote in the election of directors,
managers, general partners, trustees or other members of the governing body thereof is at the time
directly or indirectly owned by Borrower or any Subsidiary.



     “Taxes” shall have the meaning set forth in Section 4.7(a).



     “Total Liabilities” shall mean and include without duplication (a) all items which in
accordance with GAAP would be included on the liability side of a consolidated balance sheet of
Borrower on the date as of which Total Liabilities is to be determined (excluding capital
stock surplus, surplus reserves and deferred credits), (b) all Contingent Obligations, (c) all Debt
secured by any Lien existing on any interest of Borrower or any Subsidiary in property owned
subject to such lien whether or not the Debt secured thereby shall have been assumed, and (d) all
leases sold by a Borrower or any Subsidiary with recourse to Borrower or any Subsidiary, provided
that such term shall not mean or include any Debt in respect of which monies sufficient to pay and
discharge the same in full (either on the expressed date of maturity thereof or on such earlier
date as such Debt may be duly called for redemption and payment) shall be deposited with a
depository, agency or trustee acceptable to Lender, in trust and on a fully perfected basis, for
the payment thereof.



     “Total Outstandings” means the sum of (a) the aggregate amount of all Advances, plus
(b) the aggregate amount of all Letter of Credit Exposure.



     “Type” shall mean any Base Rate Portion or any LIBOR Rate Portion.



     “WSJ Prime” means the variable rate of interest published from day to day in the Money
Rates Section of the Wall Street Journal as the highest rate shown as the “Prime Rate” on corporate
loans at large United States money center commercial banks; provided that, if the Wall Street
Journal shall discontinue publication of that rate, Payee shall select a substitute rate in Payee’s
reasonable discretion.



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ARTICLE II




THE CREDIT FACILITY



Section 2.1. Commitment.




     (a) Revolving Line of Credit. Upon the terms and conditions and relying upon the
representations and warranties set forth herein and in the other Loan Documents, Lender
agrees to make revolving Advances to Borrower from time to time in amounts not to exceed the
maximum amount of the Commitment. Within such limits and during such period and subject to
the terms and conditions of this Agreement, Borrower may borrow, repay and reborrow Advances
hereunder at any time prior to the Maturity Date.



     (b) Letters of Credit. Subject to the terms and conditions set forth herein, Lender
agrees (1) to issue Letters of Credit for the account of the Borrower from time to time on
any Business Day during the period from the Closing Date until (i) with regard to Letters of
Credit issued under the Revolving Commitment, the Maturity Date, and (ii) with regard to
Letters of Credit issued under the Letter of Credit Commitment, the Letter of Credit
Expiration Date, and (2) to honor drafts under the Letters of Credit; provided that Lender
shall not be obligated to issue any Letter of Credit if as of the date of such issuance, (x)
the aggregate amount of all Letter of Credit Exposure with regard to Letters of Credit
issued under the Revolving Commitment would exceed the amount available under the Revolving
Commitment, or (y) the outstanding amount of the Letter of Credit Exposure with regard to
Letters of Credit issued under the Letter of Credit Commitment would exceed the amount
available under the Letter of Credit Commitment. Within the foregoing limits, and subject
to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall
be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed. All amounts Lender is required to advance under any Letter of Credit
issued under the Revolving Commitment shall be deemed an Advance hereunder and shall bear
interest as provided herein. Borrower shall be liable for all costs and expenses,
including, but not limited to, attorney’s fees and court costs, relating to such Letter of
Credit, or any action related to such Letter of Credit, incurred by Lender in connection
with such Letter of Credit.



     (c) Promissory Notes. Borrower shall execute and deliver to Lender (i) a Note, which
shall be dated the Closing Date, in the principal amount of the Revolving Commitment, and
payable to Lender as provided in the Note and in this Agreement, and (ii) a Note, which
shall be dated the Closing Date, in the principal amount of the Letter of Credit Commitment,
and payable to Lender as provided in the Note and in this Agreement. Each Note shall bear
interest on the unpaid principal amount thereof from time to time outstanding at the rate
per annum determined as specified in Section 3.1, payable on each Interest Payment
Date and on the Maturity Date, commencing with the first Interest Payment Date following the
date of such Note.



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     (d) Termination of Commitment. The outstanding principal balance of each Note,
together with all accrued but unpaid interest thereon, shall be due and payable in full on
the Maturity Date. The Revolving Commitment shall terminate on the Maturity Date and, after
such date, Lender shall have no obligation hereunder to make Advances or to issue Letters of
Credit under the Revolving Commitment. The Letter of Credit Commitment shall terminate on
the Letter of Credit Expiration Date, and, after such date, Letter of Credit Issuer shall
have no obligation hereunder to issue Letters of Credit under the Letter of Credit
Commitment.



     (e) Use of Proceeds. All Advances and Letters of Credit made or issued pursuant to
this Agreement shall be used solely for working capital needs of Borrower and its
Subsidiaries and for Acquisitions and the repurchase by Borrower of issued and outstanding
shares of Borrower’s stock.


Section 2.2. Borrowing Procedure.




     (a) Amounts; Method of Borrowing. Each Advance by Borrower hereunder shall be (i) in
the case of a borrowing consisting of a LIBOR Rate Portion, in an aggregate amount of not
less than $500,000 or an integral multiple of $250,000 in excess thereof; or (ii) in the
case of a borrowing consisting of a Base Rate Portion, in an aggregate amount of not less
than $250,000. Each Advance by Borrower shall be made upon prior written notice from
Borrower to Lender in the form of Exhibit B-1 hereto (a “Notice of
Borrowing”), delivered to Lender not later than 10:00 a.m. (Dallas, Texas time) (i) on
the third Business Day prior to the Borrowing Date, if such borrowing consists of a LIBOR
Rate Portion; and (ii) on the Borrowing Date, if such borrowing consists of a Base Rate
Portion. Each Notice of Borrowing shall be irrevocable and shall specify (i) the amount of
the proposed borrowing and of each LIBOR Rate Portion and/or Base Rate Portion comprising a
part thereof; (ii) the Borrowing Date; (iii) with respect to any LIBOR Rate Portion, the
Rate Period with respect to each such LIBOR Rate Portion and the Expiration Date of each
such Rate Period; and (iv) the demand deposit account of Borrower at Lender in which the
proceeds of the borrowing are to be deposited. Delivery of any Notice of Borrowing to
Lender shall constitute a representation by Borrower that the representations and warranties
made by Borrower under the Loan Documents are true and correct as of the date of delivery of
such Notice of Borrowing.



     (b) Method of Issuing Letters of Credit. Not less than five (5) Business Days prior to
the requested date of issuance of any Letter of Credit, Borrower shall execute and deliver
to Lender the customary letter of credit application and agreement in the form of
Exhibit B-2 hereto (a “LOC Application”). Nothing in this Agreement shall
prohibit Letter of Credit Issuer from modifying the form of the LOC Application in effect
from time to time in connection with the issuance of any Letter of Credit. In the event of
a direct conflict between the provisions of the LOC Application and this Agreement, the
provisions of this Agreement shall govern. In no event shall a Letter of Credit have an
expiration date which is later than the earlier of (i) with regard to Letters of Credit
issued under the Revolving Commitment, (1) the fifth Business Day prior to the Maturity Date
and (2) one year after its issuance, unless Borrower shall have deposited with Lender cash
collateral satisfactory to Lender in an aggregate amount equal to the Letter of Credit



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Exposure for such Letter of Credit, and (ii) with regard to Letters of Credit issued
under the Letter of Credit Commitment, (1) the fifth Business Day prior to the Letter of
Credit Expiration Date and (2) one year after its issuance. Upon satisfaction of the
conditions precedent set forth in Article VII, and subject to the other terms and conditions
of this Agreement, Lender shall issue Letters of Credit for the account of Borrower (or a
Guarantor designated by Borrower) within five (5) Business Days from receipt by Lender of
the fully-executed LOC Application.




     (c) Obligation to Issue Letters of Credit. The Lender shall be under no obligation to
issue any Letter of Credit if:




     (i) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the Lender from issuing such Letter
of Credit, or any Law applicable to the Lender or any request or directive (whether
or not having the force of law) from any Governmental Authority with jurisdiction
over the Lender shall prohibit, or request that the Lender refrain from, the
issuance of letters of credit generally or such Letter of Credit in particular or
shall impose upon the Lender with respect to such Letter of Credit any restriction,
reserve or capital requirement (for which the Lender is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the Lender any
unreimbursed loss, cost or expense which was not applicable on the Closing Date and
which the Lender in good faith deems material to it; or




     (ii) the issuance of such Letter of Credit would violate one or more written
policies of the Lender, which are applied indiscriminately to all borrowers of
Lender.



     (d) Cash Collateral.




     (i) Borrower shall Cash Collateralize all Letters of Credit issued under the
Letter of Credit Commitment prior to the issuance of any such Letter of Credit.




     (ii) If, as of the Maturity Date, any Letter of Credit issued under the
Revolving Commitment may for any reason remain issued and partially or wholly
undrawn, Borrower shall immediately Cash Collateralize the then outstanding amount
of all Letter of Credit Exposure (in an amount equal to such Letter of Credit
Exposure determined by Lender as of the date of the Maturity Date).




     (iii) For purposes hereof, “Cash Collateralize” means to pledge and
deposit with or deliver to the Lender, as collateral for the Letter of Credit
Exposure, cash or deposit account balances pursuant to documentation in form and
substance satisfactory to Lender. Derivatives of such term have corresponding
meanings. Borrower hereby grants to Lender a security interest in all such cash,
deposit accounts and all balances therein and all proceeds of the



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     foregoing. Cash collateral shall be maintained in blocked, interest bearing
deposit accounts at Lender.



ARTICLE III




INTEREST RATE PROVISIONS




     Section 3.1. Interest Rate Determination. The Loan shall bear interest on the unpaid
principal amount thereof from time to time outstanding, until maturity, at a rate per annum
(calculated based on a year of 360 days in each case for the actual days elapsed) as follows:




     (a) The principal balance of the Loan from time to time outstanding shall bear interest
at an annual rate equal to the lesser of (i) with respect to any LIBOR Rate Portion, the
Adjusted LIBOR Rate, and with respect to any Base Rate Portion, the Base Rate, as the case
may be, with respect thereto or (ii) the Highest Lawful Rate, from the day of Advance to,
but not including, (y) with respect to any Base Rate Portion, the Maturity Date and (z) with
respect to any LIBOR Rate Portion, the Expiration Date of the Rate Period then in effect
with respect thereto. Notwithstanding the foregoing, at no time shall the principal balance
of the Loan from time to time outstanding shall bear interest at an annual rate equal less
than three and one-quarter of one percent (3.25%).




     (b) So long as no Default or Event of Default has occurred and is continuing, Borrower
may at any time prior to the applicable Maturity Date (y) change the interest rates to apply
to all or any portion of the Loan or (z) elect to continue all or any part of the
outstanding principal balance of any LIBOR Rate Portion as portions of such Type by giving
Lender an irrevocable written notice in the form of Exhibit C hereto (the
“Notice of Rate Change/Continuation”) specifying (i) the date on which the
applicable LIBOR Rate Portion or Base Rate Portion was made; (ii) the interest rate then
applicable to such LIBOR Rate Portion or Base Rate Portion; (iii) with respect to any LIBOR
Rate Portions, the Rate Period then applicable to each such LIBOR Rate Portion; (iv) the
principal amount of such LIBOR Rate Portion to remain outstanding; and (v) the requested
effective date of the rate change or continuation (the “Conversion/Continuation
Date”). In the case of the conversion of all or any part of any Base Rate Portion into
a LIBOR Rate Portion or the continuation of any LIBOR Rate Portion, (x) such notice must be
received by Lender at least three (3) full Business Days prior to the
Conversion/Continuation Date, and otherwise at least one (1) full Business Day prior
thereto, and (y) in either case such LIBOR Rate Portion shall be in an aggregate principal
amount greater than or equal to $1,000,000 or in an integral multiple of $100,000 in excess
thereof. Each rate so specified shall become effective on the Conversion/Continuation Date
and remain in effect until the expiration of the applicable Rate Period specified in such
Notice of Rate Change/Continuation. Each Notice of Rate Change/Continuation shall be
irrevocable.




     (c) If Borrower shall fail to choose, as provided in subsection (b) above, the rate of
interest to become effective with respect to any LIBOR Rate Portions upon the Expiration
Date of the Rate Period with respect thereto, such portion of the Loan shall



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     bear interest at the Base Rate on and after such Expiration Date until Borrower shall
have so chosen a different rate.




     (d) Nothing contained herein shall authorize Borrower (i) to convert any Base Rate
Portion into or continue any LIBOR Rate Portion as a LIBOR Rate Portion unless the
Expiration Date of the Rate Period for the new LIBOR Rate Portion occurs on or before the
Maturity Date, (ii) to continue or change the interest rates applicable to any LIBOR Rate
Portions prior to the Expiration Date of the Rate Period with respect thereto, or (iii) to
convert any Base Rate Portion into a LIBOR Rate Portion or to continue any LIBOR Rate
Portion if a Default or an Event of Default has occurred and is continuing.




     (e) Notwithstanding anything set forth herein to the contrary (other than Section
11.12), if an Event of Default has occurred and is continuing the Loan shall bear interest
at a rate per annum which shall be equal to the lesser of (i) 3% above the Base Rate or (ii)
the Highest Lawful Rate, which interest shall be due and payable on demand.



     Section 3.2. Additional Interest Rate Provisions.




     (a) Anything in this Agreement to the contrary notwithstanding, if at any time Lender
determines (which determination shall be conclusive absent manifest error) that the
introduction of or any change in any Governmental Regulation by any Governmental Authority
charged with the interpretation or administration thereof shall make it unlawful for Lender
to maintain or fund any LIBOR Rate Portion or to convert any Base Rate Portion into, or to
continue, any LIBOR Rate Portion hereunder, Lender shall promptly give notice thereof to
Borrower. With respect to any LIBOR Rate Portion which is outstanding when Lender so
notifies Borrower, upon such date as shall be specified in such notice, the Rate Period
shall end and the lesser of (i) the Base Rate or (ii) the Highest Lawful Rate shall commence
to apply in lieu of the Adjusted LIBOR Rate in respect of such portion of the Loan. At
least five (5) Business Days after such specified date, Borrower shall pay to Lender (y)
accrued and unpaid interest on each affected LIBOR Rate Portion at the Adjusted LIBOR Rate
in effect at the time of such notice to but not including such specified date plus (z) such
amount or amounts (to the extent that such amount or amounts would not be usurious under
applicable Governmental Regulation) as may be necessary to compensate Lender for any costs
and losses incurred by it, but otherwise without penalty. If notice has been given by
Lender pursuant to the foregoing provisions of this Section 3.2, then, unless and until the
circumstances giving rise to such notice no longer apply, such Adjusted LIBOR Rate shall not
again apply to any portion of the Loan and the obligation of Lender to convert any portion
of the Loan into, or to continue, any LIBOR Rate Portion as, a LIBOR Rate Portion shall be
suspended.




     (b) Subject to Section 11.12 hereof, Borrower will indemnify Lender against, and
reimburse Lender on demand for, any loss, cost or expense incurred or sustained by Lender
(including, without limitation, any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by Lender to fund or maintain any LIBOR
Rate Portion to Borrower ) as a result of (i) any Additional Costs incurred by Lender; (ii)
any payment, prepayment or repayment (whether authorized or



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required hereunder or otherwise) of all or a portion of any LIBOR Rate Portion on a day
other than the last day of a Rate Period for such LIBOR Rate Portion; (iii) any payment or
prepayment (whether required hereunder or otherwise) of any LIBOR Rate Portion made after
the delivery of a Notice of Borrowing or a Notice of Rate Change/Continuation, as the case
may be, but before the applicable Borrowing Date or a Conversion/Continuation Date, as the
case may be, if such payment or prepayment prevents the proposed borrowing from becoming
fully effective; or (iv) after receipt by Lender of a Notice of Borrowing or a Notice of
Rate Change/Continuation, as the case may be, the failure of any LIBOR Rate Portion to be
made or effected by Lender due to any condition precedent to a borrowing not being satisfied
by Borrower or due to any other action or inaction of Borrower.




     (c) The agreements contained in Sections 3.2(a) and 3.2(b) shall survive the
termination of this Agreement and the payment in full of the Note and all other amounts
payable hereunder.



ARTICLE IV




PREPAYMENTS AND OTHER PAYMENTS




     Section 4.1. Required Payments.




     (a) Interest Payment Dates. Interest owed under the Note is due not later than 12:00
noon (Dallas, Texas time) on each Interest Payment Date, in immediately available funds in
Dallas, Texas, to Lender at its address referred to in Section 11.4.




     (b) Principal Payment Date. All outstanding principal owed under the Note is due not
later than 12:00 noon (Dallas, Texas time) on the Maturity Date in immediately available
funds in Dallas, Texas, to Lender at its address referred to in Section 11.4.




     (c) Intentionally Omitted.




     (d) Excess Advances. In the event that the sum of the outstanding Advances (including,
without limitation, any Advances required to be made as a result of a draw on a Letter of
Credit) plus the Letter of Credit exposure exceeds the maximum amount of the Commitment then
in effect (such excess amount referred to herein as the “Excess Amount”), Borrower
shall immediately pay to Lender the Excess Amount, together with any amount owed under
Section 3.2(b) resulting from such payment.



     Section 4.2. Optional Prepayments. Borrower shall have the right at any time and from time to
time to prepay, in whole or in part any Advance; provided, that each partial prepayment shall be in
an aggregate principal amount of at least $25,000, together with interest accrued thereon to the
date of such prepayment and all amounts due, if any, under Section 3.2.



     Section 4.3. Notice of Payments. Borrower shall give Lender at least three (3) Business Days’
prior written notice of each prepayment with respect to any LIBOR Rate Portion proposed to be made
by Borrower pursuant to Section 4.2 on a day other than the last day of the



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Rate Period for such
LIBOR Rate Portion, specifying the principal amount thereof to be prepaid,
the prepayment date and the account of Borrower to be charged if such prepayment is to be so
effected. Notice of such prepayment having been given, the principal amount of the Loan specified
in such notice, together with interest thereon to the date of prepayment, shall become due and
payable on such prepayment date. If Borrower pays or prepays any LIBOR Rate Portion prior to the
end of the Rate Period applicable thereto, such payment shall be subject to Section 3.2(b).




     Section 4.4. Place of Payment or Prepayment. All payments and prepayments made in accordance
with the provisions of this Agreement or of the Note in respect of commitment fees or of principal
or interest on the Note shall be made to Lender no later than 12:00 noon (Dallas, Texas time) in
immediately available funds at the address referred to in Section 11.4.



     Section 4.5. No Prepayment Premium or Penalty. Each prepayment pursuant to Section 4.2 shall
be without premium or penalty, except as provided in Section 3.2(b).



     Section 4.6. Increased Costs.




     (a) Notwithstanding any other provision herein, but subject to Section 11.12, if after
the date of this Agreement the introduction of or change in any applicable Governmental
Regulation or any change in any Governmental Regulation or in the interpretation or
administration thereof, or compliance by Lender (or any lending office of Lender) with any
applicable guideline or request from any central bank or Governmental Authority (whether or
not having the force of a Governmental Regulation) either (i) shall impose, modify or make
applicable any reserve, deposit, capital adequacy or similar requirement against loans made
or commitments entered into by Lender, or (ii) shall impose on Lender any other conditions
affecting this Agreement; and the result of any of the foregoing affects or would have the
effect of reducing the rate of return on Lender’s capital as a consequence of its
obligations hereunder to a level below that which Lender could have achieved but for such
adoption, change or compliance (taking into consideration Lender’s policies with respect to
capital adequacy) then, subject to Section 11.12 hereof, Borrower shall pay to Lender such
additional amount or amounts as will compensate Lender for such reduction. Notwithstanding
the foregoing, in no event shall the compensation payable under this Section 4.6 (to the
extent, if any, constituting interest under applicable laws) together with all amounts
constituting interest under applicable laws and payable in connection with this Agreement,
the Note and the other Loan Documents, exceed the Highest Lawful Rate.




     (b) Lender will notify Borrower of any event which will entitle Lender to compensation
pursuant to subsection (a) above. A certificate of Lender setting forth in reasonable
detail such amount or amounts as shall be necessary to compensate Lender as specified in
subsection (a) above shall be conclusive absent manifest error. Borrower agrees to pay to
Lender for the account of Lender the amount shown as due on any such certificate within
fifteen (15) days after its receipt of the same Lender may not make any claim for
compensation under this Section 4.6 by reason of any increased costs or reduction of return
incurred or suffered by Lender more than ninety (90) days prior to the date on which such
certificate is received by Borrower..



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     (c) Subject to the last sentence of Section 4.6(b), failure on the part of Lender to
demand compensation for any increased costs or reduction in amounts received or receivable
or reduction in return on capital with respect to the Loan shall not constitute a waiver of
Lender’s rights to demand compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital with respect to the Loan.



     Section 4.7. Taxes.




     (a) Subject to Section 11.12, any and all payments by Borrower hereunder or under the
Note shall be made free and clear of and without deduction for any and all present or future
taxes, deductions, charges or withholdings, and all liabilities with respect thereto,
including, without limitation, such taxes, deductions, charges, withholdings or liabilities
whatsoever (x) imposed, assessed, levied or collected on or in respect of the Loan solely as
a result of the interest rate being determined by reference to the LIBOR Rate, or the
provisions of this Agreement relating to the LIBOR Rate, or the recording, registration,
notarization or other formalization of any thereof or any payments of principal, interest or
other amounts made on or in respect of the Loan when the interest rate is determined by
reference to the LIBOR Rate, or (y) imposed, assessed, levied or collected by any
jurisdiction (or any political subdivision thereof) under or in which Borrower or any
Subsidiary is organized or doing business, excluding, taxes imposed on Lender’s net
income (including penalties and interest payable in respect thereof) and franchise taxes
imposed on Lender by any jurisdiction (or any political subdivision thereof) under the laws
of which Lender is organized or doing business (all such non-excluded taxes, deductions,
charges, withholdings and liabilities being hereinafter referred to as “Taxes”).
Subject to Section 11.12 hereof, if Borrower shall be required by Governmental Regulation to
deduct any Taxes from or in respect of any sum payable hereunder or under the Note to Lender
(i) the sum payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under this Section
4.7) Lender receives an amount equal to the sum it would have received had no such
deductions been made, (ii) Borrower shall make such deductions, and (iii) Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority in accordance
with applicable Governmental Regulation. If requested by Lender, Borrower shall confirm
that all applicable Taxes, if any, imposed on it by virtue of the transactions under this
Agreement have been properly and legally paid by it to the appropriate taxing authorities by
sending either (A) official tax receipts or notarized copies of such receipts to Lender
within thirty (30) days after payment of any applicable tax or (B) a certificate executed by
an Authorized Officer of Borrower confirming that such Taxes have been paid, together with
evidence of such payment.




     (b) In addition, subject to Section 11.12 hereof, Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Note or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or the Note
(hereinafter referred to as “Other Taxes”).



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     (c) Subject to Section 11.12 hereof, Borrower will indemnify Lender for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under this Section 4.7) paid by Lender and any liability
(including penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within thirty (30) days from the date Lender makes written
demand therefor.




     (d) Without prejudice to the survival of any other agreement of Borrower hereunder, the
agreement and obligations of Borrower contained in this Section 4.7 shall survive the
termination of this Agreement and the payment in full of the Note and all other amounts
payable hereunder.



     Section 4.8. Reduction or Termination of the Commitment. Borrower may at any time or from
time to time reduce or terminate the Revolving Commitment or the Letter of Credit Commitment by
giving not less than three (3) full Business Days’ prior written notice to such effect to Lender;
provided, that any partial reduction shall be in an amount of not less than $500,000 or an integral
multiple of $100,000 in excess thereof; and provided further, however, that no partial reduction
shall reduce the aggregate amount of the Revolving Commitment or the Letter of Credit Commitment to
an amount greater than zero and less than $1,000,000. Promptly after Lender’s receipt of such
notice of reduction, such reduction shall be effective on the date specified in the notice from
Borrower with respect to such reduction. The Revolving Commitment shall automatically terminate on
the earlier of the Maturity Date or upon the acceleration of the maturity date of the Note. The
Letter of Credit Commitment shall automatically terminate on the earlier of the Letter of Credit
Expiration Date or upon the acceleration of the maturity date of the Note. Each reduction of the
Revolving Commitment or the Letter of Credit Commitment hereunder shall be irrevocable.



     Section 4.9. Payments on Business Day. Whenever any payment or prepayment hereunder or under
the Note shall be stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such case be included in
the computation of payment of interest; provided, however, if such extension would cause payment of
interest on or principal of LIBOR Rate Portions to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.



ARTICLE V




COMMITMENT FEE AND OTHER FEES




     Section 5.1. Commitment Fees.




     (a) Upfront Commitment Fee. Borrower agrees to pay to Lender, on the Closing Date, an
upfront commitment fee in respect of the Revolving Commitment of in the amount of $25,000.



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     (b) Unused Commitment Fee. Borrower agrees to pay to Lender a fee at a per annum
rate equal to 25 basis points on the daily unused portion of the Revolving Commitment from
the date hereof to and including the Maturity Date, payable in arrears at the end of each
calendar quarter hereafter and on the Maturity Date (the amount of the Letter of Credit
Exposure for Letters of Credit issued under the Revolving Commitment at any time shall
reduce the unused portion of the Revolving Commitment for the purpose of calculating the fee
under this Section 5.1(b)). Borrower may permanently reduce the Commitment in whole, or in
part, pursuant to Section 4.8, provided, however, that the amount of the Revolving
Commitment may not be reduced below the principal amount of the outstanding Advances and
Letter of Credit Exposure. All accrued fees under this Section 5.1(b) shall be payable on
the effective date of any termination of the obligations of Lender to make Advances
hereunder.




     (c) Letter of Credit Fees. Borrower shall pay to Lender a letter of credit fee at a
per annum rate equal to: (i) the Letter of Credit Margin on the average daily Letter of
Credit Exposure under the Letter of Credit Commitment, and (ii) the Revolving LC Margin on
the average daily Letter of Credit Exposure under the Revolving Commitment. Such fee shall
be payable in arrears payable at the end of each calendar quarter hereafter and on the
Maturity Date. Borrower shall also pay to Lender at the time of issuance of each Letter of
Credit and in connection with any re-issuance or draws thereunder, issuance fees and
documentary charges in accordance with Lender’s standard schedule for such charges as in
effect from time to time.



     Section 5.2. Fees Not Interest; Nonpayment. The fees described in this Agreement represent
compensation for services rendered and to be rendered separate and apart from the lending of money
or the provision of credit and do not constitute compensation for the use, detention, or
forbearance of money, and, subject to Section 11.12, the obligation of Borrower to pay each fee
described herein shall be in addition to, and not in lieu of, the obligation of Borrower to pay
interest, other fees described in this Agreement, and expenses otherwise described in this
Agreement. Fees shall be payable when due in Dollars and in immediately available funds. Subject
to Section 11.12 hereof, all fees, including, without limitation, the fees referred to in Section
5.1 and any other fees payable pursuant to this Agreement, shall be non-refundable, and shall, to
the fullest extent permitted by Governmental Regulation, bear interest, if not paid when due, at a
rate per annum equal to the lesser of (a) 3% above the Base Rate or (b) the Highest Lawful Rate.



ARTICLE VI




REPRESENTATIONS AND WARRANTIES



     Borrower represents and warrants that:



     Section 6.1. Organization and Qualification; Subsidiaries. Borrower is (i) duly organized, validly
existing and in good standing under the laws of the state of its organization and has full legal
right, power and authority to carry on its business as presently conducted and to execute, deliver
and perform its obligations under this Agreement and all other Loan Documents executed
by it, and (ii) is duly qualified to do business and in good standing in each




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jurisdiction in which the nature of the business it conducts in such jurisdiction makes
such qualification necessary or desirable except where the failure to so qualify would not
reasonably be expected to have a Material Adverse Effect. As of the Closing Date, Borrower does
not own any Subsidiary. Borrower owns all of the issued and outstanding stock of such Subsidiaries
and there are no outstanding warrants or requirements of any type for the issuance of additional
shares in such Subsidiaries.




     Section 6.2. Authorization. Borrower’s execution, delivery and performance of the Loan
Documents (i) have been duly authorized by all necessary action under such Person’s organizational
documents and otherwise, (ii) do not and will not require any consent of any other person or
entity, and (iii) do not and will not require any consent, license, permit authorization or other
approval (including foreign exchange approvals) of any Governmental Authority, or any notice to,
exemption by, any registration, declaration or filing with or the filing of any other action in
respect of any Governmental Requirement.



     Section 6.3. No Conflicts. Neither execution or delivery by Borrower of any Loan Document nor
the fulfillment of or compliance with its terms and provisions will (i) violate any Governmental
Requirement of any Governmental Authority or the basic organizational documents of such Person or
(ii) conflict with or result in a breach of the terms, conditions or provisions of, or cause a
default under, any material agreement, instrument, franchise, license or concession to which such
Person is a party or bound.



     Section 6.4. Enforceability. Each Loan Document to which Borrower is a party has been duly
and validly executed, issued and delivered by Borrower. They are in proper legal form for prompt
enforcement and they are Borrower’s valid and legally binding obligations enforceable in accordance
with their terms, except as limited by applicable bankruptcy, insolvency, fraudulent transfer,
fraudulent conveyance, reorganization, moratorium, or other similar laws at the time in effect
affecting the rights of creditors generally. Borrower’s obligations under the Loan Documents rank
and will rank at least equal in priority of payment with all of Borrower’s other debt.



     Section 6.5. Accuracy of Information; No Material Adverse Change. All information supplied to
Lender and all statements made to Lender by or on behalf of Borrower in connection with this
Agreement are and will be true, correct, complete, valid and genuine in all material respects.
Each of Borrower’s financial statements furnished to Lender pursuant to Section 7.1 of this
Agreement fairly presents the financial condition and results of operations of Borrower as of its
date and for the period then ended. There has been no material adverse change in the financial
condition or results of operations of Borrower since the last financial statements delivered by
Borrower pursuant to Section 7.1(c) or 8.1, as applicable, and all assets listed on the last such
statement so delivered are subject to Borrower’s management control and disposition and, except as
shown therein, are available to satisfy any claim rightfully made pursuant to the Loan Documents
executed by Borrower.



     Section 6.6. Taxes. Borrower has filed all tax returns required to be filed and paid all taxes
shown thereon to be due by the due date or extension thereof, including interest and penalties,
except for taxes being diligently contested in good faith and for payment of which adequate
reserves have been set aside.




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     Section 6.7. Litigation and Other Proceedings. There is no condemnation or other action,
suit or proceeding pending or, to the best of Borrower’s knowledge, threatened against or affecting
Borrower or any Collateral, at law or in equity, or before or by any Governmental Authority, which
could reasonably be expected to result in any material adverse change in Borrower’s business or
financial condition or in any Collateral or in other material property of Borrower or any interest
in it.



     Section 6.8. No Defaults. Borrower is not in default with respect to the payment of any debt
for borrowed money which has an outstanding balance in excess of $100,000 or under any agreement or
other papers evidencing or securing any such debt, which has not been waived, or with respect to
any Governmental Requirement under circumstances in which any such default could reasonably be
expected to have a Material Adverse Effect, except in connection with the matters described or to
which reference is made in Section 6.7.



     Section 6.9. Solvency. Borrower is solvent and no bankruptcy or insolvency proceedings are
pending or contemplated by or, to Borrower’s knowledge, against Borrower or any Guarantor. After
giving effect to the limitations on liability contained in the Guaranty and to the rights and
obligations of the Borrower under the Contribution Agreements, Borrower’s liabilities and
obligations under this Agreement and the other Loan Documents do not and will not render Borrower
insolvent, cause Borrower’s liabilities to exceed Borrower’s assets or leave Borrower with too
little capital to properly conduct all of its business as now conducted or contemplated to be
conducted.



     Section 6.10. Representations and Warranties. No representation or warranty contained in any
Loan Document executed by Borrower or any then existing Subsidiary and, as of the date such
statement is dated or certified, no statement contained in any certificate, schedule, list,
financial statement or other papers furnished to Lender by or on behalf of Borrower contains or
will contain any untrue statement of material fact, or omits or will omit to state a material fact
necessary to make the statements contained therein not misleading, provided that, insofar as the
foregoing representation and warranty addresses information provided to Borrower or any Subsidiary
by customers, such representation and warranty is based solely upon investigation made by Borrower
or any such Subsidiary in the normal course of business.



     Section 6.11. Margin Regulations. None of the proceeds of the Loan will be used for the
purpose of purchasing or carrying, directly or indirectly, any margin stock or for any other
purpose which would make such credit a “purpose credit” within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System.



     Section 6.12. Licenses, Permits, Trademarks, etc. Borrower possesses all material permits,
licenses, patents, trademarks, trade names and copyrights required to conduct its business.



     Section 6.13. Compliance with Governmental Requirements. Borrower and the property of Borrower
covered by the Loan Documents are in compliance with all Governmental Requirements, except where
the failure to comply with the same could not reasonably be expected to have a Material Adverse Effect, and Borrower manages and operates (and will
continue to manage and operate) its business in accordance with good industry practices.




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     Section 6.14. ERISA. No event has occurred which could result in liability on Borrower to the
Pension Benefit Guaranty Corporation (“PBGC”). Borrower has met all requirements with
respect to funding of each plan (a “Plan”) maintained for any of Borrower’s employees
subject to Title IV of the Employee Retirement Benefit Act of 1974, as amended, and related
regulations (“ERISA”), if any exists. No event or condition has occurred that would permit
any lien under ERISA to attach to any of the collateral for Borrower’s obligations in connection
herewith.



     Section 6.15. Title to Properties. Borrower has good, sufficient and legal title to, or valid
leasehold interest in, all of the assets listed on its balance sheet, subject to no Liens except
those permitted in Section 9.2.



     Section 6.16. Burdensome Contracts. Borrower is not a party to any contract or agreement or
subject to any restriction the performance of or the compliance with which could reasonably be
expected to have a Material Adverse Effect.



ARTICLE VII




CONDITIONS



     Section 7.1. Conditions to Initial Advance. Lender will not be obligated to make the initial
Advance or issue any Letter of Credit hereunder unless all of the following conditions shall be
satisfied at the time of such Advance or issuance:




     (a) Approvals. Prior to the Closing Date, Borrower shall have obtained all orders,
approvals or consents of all Persons required for the execution, delivery and performance by
Borrower of the Loan Documents to which each such Person is a party.




     (b) Compliance with Law. The business and operations of Borrower as conducted at all
times relevant to the transactions contemplated by this Agreement to and including the close
of business on the Closing Date shall have been and shall be in compliance (other than any
failure to be in compliance that does not result in a Material Adverse Effect) with all
applicable Governmental Regulations. No Governmental Regulation shall prohibit the
transactions contemplated by the Loan Documents, no order, judgment or decree of any
Governmental Authority shall exist, and no litigation shall be pending or, to the best
knowledge of Borrower, threatened, which in the judgment of Lender (A) would enjoin,
prohibit or restrain the transactions contemplated by the Loan Documents or (B) could
reasonably be expected to have a Material Adverse Effect.




     (c) Financial Statements. On the Closing Date, Lender shall have received and
reviewed: (i) internally prepared, consolidated financial statements of Borrower as of
December 31, 2008; (ii) a company prepared, consolidated financial projection for Borrower
for the 2009 calendar year; and (iii) a certificate dated the Closing Date of the
chief financial officer or the treasurer of Borrower certifying that the financial
position of Borrower as of the Closing Date is not materially different from that presented
in the December 31, 2008 consolidated balance sheet of Borrower attached to such
certificate.



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     (d) Insurance. Lender shall have received evidence satisfactory to it of the existence
of all insurance policies required by the Loan Documents, such policies designating Lender
as the loss payee, providing for the giving of at least thirty (30) days’ notice to Lender
of cancellation or material modification thereof, and otherwise complying with the
provisions of Section 8.11. Lender shall have received such agreements, guaranties,
subordinations (as to payment liens and security interests or both), releases and other
agreements and assurances from other creditors of Borrower as Lender shall reasonably
require.




     (e) Payment of Fees and Expenses. Lender shall have received payment of (i) all fees
described in Section 5 hereof and (ii) without limiting the obligations of Borrower under
Section 11.2, the reasonable expenses of, or incurred by, Lender and its counsel, to the
extent billed as of the Closing Date, in connection with the negotiation and closing of the
transactions contemplated herein.




     (f) Required Documents and Certificates. On the Closing Date, Lender shall have
received the following, in each case in form, scope and substance satisfactory to Lender:




     (i) the Note;




     (ii) the Security Agreements;




     (iii) an Officer’s Certificate from Borrower dated as of the Closing Date
certifying, inter alia, (A) the Articles of Incorporation and Bylaws (or equivalent
corporate documents), as amended and in effect, of Borrower and each Subsidiary; (B)
resolutions duly adopted by the Board of Directors of Borrower and each Subsidiary
authorizing the transactions contemplated by the Loan Documents to which it is a
party; and (C) the incumbency and specimen signatures of the officers of Borrower
authorized to execute documents on its behalf;




     (iv) a certificate from the appropriate public official of the jurisdiction in
which Borrower and each Subsidiary is organized as to the continued existence and
good standing of Borrower and each Subsidiary;




     (v) a legal opinion in form, substance and scope reasonably satisfactory to
Lender from counsel for, and issued upon the express instructions of, Borrower; and




     (vi) certified copies of Requests for Information of Copies (Form UCC-11), or
equivalent reports, listing all effective financing statements
which name Borrower or any Subsidiary (under its present name, any trade
names and any previous names) as debtor and which are filed, together with copies of
all such financing statements.



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     (g) Field Exam/Audit. Lender shall have performed to its satisfaction a field
exam/audit of Borrower’s assets, including, without limitation, the Eligible Accounts
Receivables.



     Section 7.2. Conditions to each Loan, Continuation or Conversion. Lender will not be
obligated to make, continue or convert any Advance or LIBOR Rate Portion (including its initial
Advance) hereunder unless all of the following conditions shall be satisfied at the time of such
Advance, continuation or conversion:




     (a) Representations and Warranties. The representations and warranties made, or deemed
made, in or pursuant to this Agreement and the other Loan Documents shall be true and
correct as of the date of the contemplated Advance, continuation or conversion as though
originally made on such date, and Lender shall have received a certificate from an
Authorized Officer of Borrower certifying that: (i) the representations and warranties of
Borrower and its Subsidiaries contained in the Loan Documents (other than those
representations and warranties limited by their terms to a specific date) shall be true and
correct on and as of the particular Borrowing Date or the applicable Conversion/Continuation
Date, as though made on and as of such date; (ii) no Event of Default or Default has
occurred and is continuing; and (iii) no event has occurred since the date of the most
recent financial statements delivered pursuant to Section 8.1(a), that has caused, or could
reasonably be expected to cause, a Material Adverse Effect.




     (b) No Default. No Event of Default or Default shall have occurred and be continuing.




     (c) Borrowing Documents. On each Borrowing Date, Lender shall have received a Notice
of Borrowing delivered in accordance with Section 2.2 and any necessary report or
representation required to be delivered by Borrower subsequent to the Closing Date pursuant
to Section 7.1(f) or Section 8.1(c), as the case may be. Prior to the issuance of any
Letter of Credit, Lender shall have received an LOC Application as required by this
Agreement.




     (d) Conversion/Continuation Documents. On each Conversion/Continuation Date, Lender
shall have received a Notice of Rate Change/Continuation and any documents or
representations necessary to facilitate such action.




     (e) Security for the Loan. Each Subsidiary, if any, shall have executed and delivered
to Lender a Guaranty and a Contribution Agreement and Borrower and such Subsidiary shall
have executed and delivered to Lender, and filed where appropriate, all security agreements,
pledge agreements, financing statements and other documents, instruments and agreements so
as to create in favor of Lender a first priority lien on all of the assets of Borrower and
its Subsidiaries as collateral for the Obligations.




     (f) Other Documentation and Information. Lender shall have received such other
evidence, documentation and information as Lender may reasonably request.



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     Section 7.3. Post-Closing Requirements. As soon as possible, and in any event within
thirty (30) days of the Closing Date, Borrower shall deliver to Lender




     (a) title updates, insurance policies, flood certificates and any other property
specific information requested by Lender in connection with the Mortgages granting Lender a
first and prior lien on Borrower’s real property located in Lubbock, Texas, Longview, Texas,
Dayton, Ohio, Yarmouth, Maine, and Bangor, Maine; and




     (b) a certificate from the appropriate public official of each jurisdiction in which
Borrower is authorized and qualified to do business as to the due qualification and good
standing of Borrower unless failure is not reasonably likely to have a Material Adverse
Effect.



ARTICLE VIII




AFFIRMATIVE COVENANTS



     Borrower covenants and agrees that, so long as Borrower may obtain Advances or issuances of
Letters of Credit under this Agreement and until payment in full of the Obligations and termination
of the Revolving Commitment and the Letter of Credit Commitment, Borrower will and will cause each
Subsidiary, if any, to:



     Section 8.1. Financial Statements and Information. Furnish or cause to be furnished to Lender
a copy of each of the following within the times indicated:




     (a) as soon as available and in any event no later than one hundred twenty (120) days
after the end of each fiscal year of Borrower, (i) annual audited consolidated financial
statements for Borrower, and all notes thereto, including a balance sheet and statements of
income, retained earnings and cash flows for such fiscal year and the immediately preceding
fiscal year in comparative form, all prepared in conformity with GAAP on a consolidated
basis and accompanied by a report and opinion of Ernst & Young LLP or other firm of
independent certified public accountants satisfactory to Lender stating that such
accountants have conducted audits of such financial statements in accordance with generally
accepted auditing standards and that, in their opinion, such financial statements present
fairly, in all material respects, Borrower’s financial position as of their date and the
results of Borrower’s operations and cash flows for the period they covered in conformity
with GAAP, (ii) copies of the internally prepared consolidating balance sheets and
statements of income of Borrower and its Subsidiaries utilized in the preparation of the
consolidated financial statements of Borrower furnished to Lender pursuant to clause (i)
preceding and certified on behalf of Borrower by an appropriate officer or other responsible
party acceptable to Lender, and (iii) a Compliance Certificate substantially in the form of
Exhibit D;




     (b) as soon as available and in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of Borrower, (i), unaudited
consolidated financial statements for Borrower, including a balance sheet as at the
close of such quarter and an income statement and statement of cash flows for such quarter,
all



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prepared in accordance with GAAP on a consolidated basis and certified on behalf
of Borrower by an appropriate officer or other responsible party acceptable to Lender, and
(ii) a Compliance Certificate substantially in the form of Exhibit D;




     (c) as soon as available and in any event within 30 calendar days after the end of each
fiscal quarter, a complete aging of all accounts receivable by Borrower;




     (d) promptly following the discovery thereof, information in reasonable detail
correcting any information provided to Lender in reliance upon information from a customer
of Borrower which Borrower discovers to be inaccurate or misleading in any material respect;




     (e) promptly upon the filing thereof, copies of all registration statements, and
annual, quarterly, monthly or other regular reports filed by or on behalf of Borrower or any
of its Subsidiaries with the Securities and Exchange Commission; and




     (f) such other information relating to Borrower’s or any Subsidiary’s financial
condition and affairs as Lender may from time to time reasonably request or as may be
required from time to time by any Loan Document.



     Section 8.2. Maintenance of Existence and Good Standing. Maintain its existence and obtain
and maintain all franchises and permits necessary for Borrower and each Subsidiary continuously to
be in good standing in the state of its organization with full power and authority to conduct its
regular business and to own and operate its property.



     Section 8.3. Compliance With Governmental Requirements. Conduct its business in substantial
compliance with all Governmental Requirements and will comply with and punctually perform all of
the covenants, agreements and obligations imposed upon it to the extent any failure to so comply
could reasonably be expected to have a Material Adverse Effect or cause any representation or
warranty in the Loan Documents to be false or misleading in any material respect.



     Section 8.4. Payment of Obligations. Pay punctually and discharge when due, or renew or
extend, any debt incurred by it equal to or exceeding $100,000 and will discharge, perform and
observe the covenants, provisions and conditions to be performed, discharged and observed on its
part in connection therewith or in connection with any agreement or other instrument relating
thereto or in connection with any mortgage, pledge or lien existing at any time upon any of the
property or assets of Borrower securing the payment thereof, provided, however, that nothing
contained in this Section 8.4 shall require Borrower to pay, discharge, renew or extend any such
indebtedness or to discharge, perform or observe any such covenants, provisions and conditions so
long as Borrower shall be diligently and in good faith contesting any claims which may be asserted
against it with respect to any such indebtedness or any such covenants, provisions and conditions
and shall set aside on its books reserves with respect thereto deemed adequate by Lender.



     Section 8.5. Notification of Material Adverse Change. Promptly upon acquiring knowledge of
any material adverse change in its assets, liabilities, financial condition, business,



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operations, affairs or circumstances, notify Lender in writing thereof, setting forth the
nature of such change in reasonable detail and will take or cause to be taken all such steps as are
necessary or appropriate to remedy promptly any such change.




     Section 8.6. Notification of Defaults. Promptly upon acquiring knowledge thereof, notify
Lender by telephone (and confirm such notice in writing within five (5) days) of the existence of
any Default or Event of Default hereunder or of any default or event of default (however
denominated) under any of the Loan Documents, or under the loan papers evidencing and/or securing
any other Debt, specifying the nature and duration thereof and what action Borrower has taken, is
taking and proposes to take with respect thereto. In no event shall silence by Lender be deemed a
waiver by it of a Default or an Event of Default. Borrower will take all such steps as are
necessary or appropriate to remedy promptly any such Default or Event of Default



     Section 8.7. Notification of Exchange Act Filings. Promptly upon acquiring knowledge of the
filing with the Securities and Exchange Commission of any Schedule 13D, 13G, or 14D-1 with respect
to the acquisition of, or a tender offer with respect to, the capital stock of Borrower, furnish a
copy of such filing to Lender.



     Section 8.8. Notification of Proceedings Affecting Collateral. Immediately upon obtaining
knowledge of the institution of any proceedings for the condemnation of the Collateral covered by
the Loan Documents, the real property described in Section 7.2(e) or any material portion thereof,
or any other legal proceedings arising out of injury or damage to the Collateral covered by the
Loan Documents, the real property described in Section 7.2(e) or any material portion thereof,
notify Lender in writing of the pendency of such proceedings. Lender may (but shall not be
required to) participate in any such proceedings, and Borrower or the applicable Subsidiary shall
from time to time deliver to Lender all instruments requested by it to permit such participation.
Borrower or the applicable Subsidiary shall, at its expense, diligently prosecute any such
proceedings, and shall consult with Lender, its attorneys and experts, and cooperate with them in
the carrying on or defense of any such proceeding.



     Section 8.9. Additional Information. Furnish to Lender from time to time, within ten (10)
days after Lender’s request thereof, such information relating to the Collateral or Borrower’s or
any Subsidiary’s financial condition and affairs as Lender may from time to time request or as may
be required from time to time by any Loan Document.



     Section 8.10. Books and Records. At all times maintain proper books of record and account in
accordance with sound accounting practice in which true, full and correct entries will be made of
all its dealings and business affairs, and will set aside on its books adequate reserves for
depletion, depreciation, obsolescence and/or amortization of its property, and all other reserves
which, in accordance with sound accounting practice, should be set aside, and will write down, to
the estimated salvage value thereof, all property not useful in its business. Lender shall be
entitled to have such books examined and audited, at the expense of Borrower, at any time (but,
except during the continuance of a Default, not more than once in any fiscal quarter of Borrower)
by representatives of Lender.




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     Section 8.11. Insurance. At all times maintain insurance with insurance companies rated
acceptably to Lender or otherwise acceptable to Lender, in such amounts and against such risks as
are satisfactory to Lender, including without limitation casualty and liability insurance complying
with the loss payee and notice requirements specified in Section 7.1(d), and, in any event, as
would be reasonably prudent for entities in the same or similar type and size of business and
owning similar property in the same general area, and furnish to Lender, not less frequently than
annually a certificate of insurance as to the insurance carried. If Borrower or any Subsidiary
shall at any time or times hereafter fail to obtain or maintain any of the policies of insurance
required herein, or fail to pay any premium in whole or in part relating to such policies, Lender
may, but shall not be obligated to, obtain or cause to be maintained insurance coverage, including
at Lender’s option, the coverage provided by all or any of the policies of Borrower and its
Subsidiaries and pay all or any part of the premium therefor, without waiving any default by
Borrower, and any sums so disbursed by Lender shall be additional Advances to Borrower by Lender
payable on demand.



     Section 8.12. Deposit Relationship. Except for demand depositary accounts maintained by
Subsidiaries of Borrower for the purposes of facilitating deposits of collections in the ordinary
course of business and of providing a source of daily petty cash requirements, Borrower will at all
times during the term of this Agreement maintain, and cause its Subsidiaries (other than the
Excluded Subsidiaries) to maintain, general operating accounts and day-to-day cash management
accounts with Lender.



     Section 8.13. Collateral Audit. Assist Lender with Lender’s audit of the Collateral, which
audit or audits shall occur at Lender’s discretion.



ARTICLE IX




NEGATIVE COVENANTS



     Borrower covenants and agrees that, so long as Borrower may obtain Advances or issuances of
Letters of Credit under this Agreement and until payment in full of the Obligations, Borrower will
not and will not permit any Subsidiary to, without obtaining the prior written consent of Lender:



     Section 9.1. Debt. Create, incur, suffer or permit to exist, or assume or guarantee, directly
or indirectly, or otherwise become or remain liable with respect to, any Debt, contingent or
otherwise (including without limitation, any off balance sheet liabilities), except: (a) the
Obligations; (b) Debt that is in the form of loans or advances from Borrower to any Guarantor or
between Guarantors and that is not evidenced by promissory notes and, if requested by Lender, is
expressly subordinated to the Note; (c) Subordinated Debt (i) existing on the date of this
Agreement and described in Schedule 9.1 or (ii) incurred to make Permitted Acquisitions, provided
that the aggregate amount of Subordinated Debt issued for such purpose shall not exceed $3,000,000
and shall relate only to Permitted Acquisitions made in the fiscal year in which it is counted; and
(e) Debt existing on the date of this Agreement and described in Schedule 9.1.



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     Section 9.2. Liens. Create or suffer to be created or to exist any Lien excepting only
(a) Liens in favor of Lender to secure the Obligations, (b) Liens subordinated to Liens in favor of
Lender under terms acceptable to Lender in its sole discretion and to which Lender is a party, (c)
Liens created by operation of law in the ordinary course of business for amounts not yet due (or
being contested in good faith by appropriate proceedings or other appropriate actions which are
sufficient to prevent enforcement of such Liens and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with GAAP), (d) Liens existing on
the date of this Agreement and described in Schedule 9.2, (e) Liens securing Debt or Capital Leases
permitted under Section 9.1(c), provided that no such Lien secures any Debt other than the Debt
incurred in connection with the purchase or lease of the property subject thereto or encumbers any
property (including the proceeds thereof) other than the property purchased or leased with the
proceeds of the Debt secured thereby, (f) Liens in the form of precautionary financing statements
filed under the Uniform Commercial Code to reflect operating leases, (g) Liens in the form of
zoning restrictions, restrictive covenants, rights of way, easements, licenses and other
restrictions on the use of real property which do not materially impair the use of such real
property in the ordinary operation of the business of Borrower or the applicable Subsidiary of
Borrower utilizing the same, and (h) Liens in the form of purchase money security interests in
favor of vendors from whom equipment is purchased in the ordinary course of business for resale to
customers of Borrower or its Subsidiaries if (1) such Liens in favor of any vendor do not cover
property other than equipment purchased from such vendor and (2) the Debt secured by such Liens is
fully paid within 120 days after the creation thereof.



     Section 9.3. Organizational Documents. Modify or amend its organization documents or suffer
or permit a material modification or amendment to its organizational documents in any manner that
reasonably could be expected to affect any rights of Lender under the Loan Documents or have a
Material Adverse Effect.



     Section 9.4. No Subsidiaries. Acquire or form any Subsidiary unless (a) such Subsidiary (i)
is a wholly-owned Subsidiary, (ii) executes and delivers to Lender a Guaranty, (iii) enters into a
Security Agreement in substantially the form of the Security Agreements executed by Subsidiaries on
the Closing Date, and (iv) delivers such certificates, evidences of corporate action, financing
statements, opinions of counsel and other documents as Lender may reasonably request and (b)
Borrower or the appropriate Subsidiary executes a Pledge Agreement pledging to Lender the stock of
such new Subsidiary, and delivers to Lender the applicable stock certificates and stock powers
executed in blank, all of the items referred to in (a) and (b) above to be in form and substance
reasonably satisfactory to Lender, in each case not later than 10 days after the acquisition or
formation of such Subsidiary.



     Section 9.5. Dividends. Declare or pay any Distributions, except dividends declared and paid
by any Guarantor to Borrower and Permitted Distributions.



     Section 9.6. Acquisitions. Make any Acquisition other than a Permitted Acquisition.



     Section 9.7. Mergers, Consolidations, etc. (a) Merge or consolidate with or into any other
Person, (b) convey, transfer or otherwise dispose of all or substantially all of its assets to
any Person, or (c) adopt or effect any plan of reorganization, recapitalization, liquidation
or dissolution, except that (i) a Subsidiary of Borrower may be a party to any merger or



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consolidation that constitutes an Acquisition permitted by Section 9.6, provided that
such Subsidiary shall be the survivor of any such merger or consolidation, (ii) any Guarantor may
merge into or consolidate with Borrower (if Borrower is the survivor of any such merger or
consolidation), and (iii) any Guarantor may merge into or consolidate with any other Guarantor.




     Section 9.8. Change of Name. Change its name without first notifying Lender in writing of
such change at least thirty (30) days before its effective date.



     Section 9.9. Financial Covenants. Permit:




     (a) On a consolidated basis as of the last day of any fiscal quarter, the ratio of
Funded Debt to EBITDA less Capital Expenditures (excluding such Capital Expenditures
identified on Schedule II incurred on or before September 30, 2009) and less cash paid for
Taxes for the preceding two (2) fiscal quarters then ended multiplied by two (2), to be
greater than 1.5:1.0.




     (b) On a consolidated basis as of the last day of any fiscal quarter, the Fixed Charge
Coverage for the applicable period, to be less than 2.0:1.0.



     Section 9.10. Investments. Make or permit to remain outstanding any Investment other than
Permitted Investments.



     Section 9.11. Subordinated Debt; Seller Note. Permit any amendment or modification to the
documents evidencing or governing any Subordinated Debt permitted by Section 9.1(d), or, directly
or indirectly, voluntarily prepay, defease or in substance defease, purchase, redeem, retire, or
otherwise acquire any such Subordinated Debt, or make any principal payment on the Subordinated
Debt prior to payment in full of the Obligations and the termination of the Revolving Commitment.



     Section 9.12. Character of Business. Change the general character of its business as
conducted on the Closing Date, or engage in any type of business not reasonably related to its
business as presently conducted.



ARTICLE X




EVENTS OF DEFAULT; REMEDIES



     Section 10.1. Events of Default. The occurrence of any of the following events shall
constitute an “Event of Default” (herein so called) under this Agreement:




     (a) Borrower (i) shall fail to pay when due any payment or prepayment of the principal
of the Note or (ii) shall fail to pay when due any interest on the Note or any other
monetary amount due under this Agreement or any other Loan Document and such failure shall
not have been cured within five (5) Business Days;




     (b) (i) any covenant contained in Sections 8.1, 8.2, 8.5, 8.6, 8.9, or Article IX of
this Agreement is not fully and timely performed, observed or kept in all material



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respects or (ii) any other covenant, agreement or condition contained in this
Agreement or in any other Loan Document is not fully and timely performed, observed or kept
in all material respects and such failure or breach is not cured within thirty (30) days
following the earlier of knowledge of such failure or breach by Borrower or the receipt by
Borrower of written notice thereof from Lender;




     (c) any representation, warranty, certification or statement made or deemed to have
been made by Borrower or any Subsidiary in this Agreement or by Borrower or any other Person
in any certificate, financial statement or other document delivered pursuant to this
Agreement, including, without limitation, any other Loan Document, shall prove to have been
incorrect in any material respect when made;




     (d) any event or condition shall occur and continue unremedied or unwaived for a period
beyond any applicable cure period provided pursuant to the terms of any Debt of Borrower or
any Subsidiary in excess of $500,000, which entitles (or, with the giving of notice or lapse
of time or both, would entitle) the holder of any such Debt to accelerate the maturity
thereof;




     (e) Borrower or any Subsidiary shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;




     (f) an involuntary case or other proceeding shall be commenced against Borrower or any
Subsidiary seeking liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of sixty (60) days; or an
order for relief shall be entered against Borrower or any Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;




     (g) one or more final judgments or orders for the payment of money in an aggregate
amount outstanding at any time in excess of $1,000,000 shall be rendered against Borrower or
any Subsidiary and such judgment or order (i) shall continue unsatisfied and unstayed
(unless bonded with a supersedeas bond at least equal to such judgment or order) for a
period of thirty (30) days or (ii) is not fully paid and satisfied at least ten days prior
to the date on which any of its assets may be lawfully sold to satisfy such judgment or
order;



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     (h) one or more judgments or orders for the payment of money shall be rendered
against Borrower or any Subsidiary, whether or not otherwise bonded or stayed, which has a
Material Adverse Effect; or




     (i) the sale, pledge, encumbrance, assignment or transfer, voluntarily or
involuntarily, of any equity interest in any Guarantor, without the prior written consent of
Lender.



     Section 10.2. Remedies. If any of the Events of Default specified in Section 10.1 shall
occur, then (a) Lender shall be entitled (i) by notice to Borrower, to declare the commitments and
the obligation to make Advances or issue Letters of Credit hereunder to be terminated, whereupon
the same shall forthwith terminate, and (ii) to declare the Note and all interest accrued and
unpaid thereon, and all other amounts payable under the Note, this Agreement, and the other Loan
Documents, to be forthwith due and payable, whereupon the notes, all such interest and all such
other amounts, shall become and be forthwith due and payable without presentment, demand, protest,
or further notice of any kind (including, without limitation, notice of default, notice of intent
to accelerate and notice of acceleration), all of which are hereby expressly waived by Borrower,
and (b) Lender may avail itself of any and all powers, rights and remedies available at law or
provided in this Agreement, the Note, the other Loan Documents or any other document executed
pursuant hereto or in connection herewith; provided, however, that with respect to any Event of
Default described in Section 10.1(e) or 10.1(f), (x) the Revolving Commitment and Letter of Credit
Commitment and the obligation of Lender to make Advances or issue Letters of Credit hereunder shall
automatically be terminated and (y) the entire unpaid principal amount of the Note, all interest
accrued and unpaid thereon and all such other amounts payable under the Note, this Agreement and
the other Loan Documents, shall automatically become immediately due and payable, without
presentment, demand, protest, or any notice of any kind (including, without limitation, notice of
default, notice of intent to accelerate and notice of acceleration), all of which are hereby
expressly waived by Borrower.



     Section 10.3. Certain Other Remedial Matters. Upon the occurrence of any Event of Default, Lender
shall also have the right immediately and without notice, to take possession of and exercise
possessory rights with regard to any property securing payment of the Obligations. All powers,
rights and remedies of Lender set forth in this Article X shall be cumulative and not exclusive of
any other power, right or remedy available to Lender under any Governmental Requirement or under
this Agreement, the Note, the other Loan Documents or any other document executed pursuant hereto
or in connection herewith to enforce the performance or observance of the covenants and agreements
contained in this Agreement and the other Loan Documents, and no delay or omission of Lender to
exercise any power, right or remedy shall impair any such power, right or remedy, or shall be
construed to be a waiver of the right to exercise any such power, right or remedy. Every power,
right or remedy of Lender set forth in this Agreement, the Note, the other Loan Documents or any
other document executed pursuant hereto or in connection herewith, or afforded by Governmental
Requirement may be exercised from time to time, and as often as may be deemed expedient by Lender.




ARTICLE XI




MISCELLANEOUS



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     Section 11.1. Waivers, Etc. No failure or delay on the part of Lender in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such
a right or power, preclude any other or further exercise thereof or the exercise of any other right
or power. No course of dealing between Borrower and Lender shall operate as a waiver of any right
of Lender. No modification or waiver of any provision of this Agreement, the Note or any other
Loan Document nor consent to any departure by Borrower therefrom shall in any event be effective
unless the same shall be in writing, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice to or demand on Borrower in any
case shall entitle Borrower to any other or further notice or demand in similar or other
circumstances.



     Section 11.2. Reimbursement of Expenses. Whether or not the transactions contemplated by this
Agreement shall be consummated, Borrower agrees to reimburse, within ten (10) days after written
demand therefor, (a) Lender for its out-of-pocket expenses, including the reasonable fees and
expenses of counsel to Lender, in connection with such transactions, or any of them, or otherwise
in connection with this Agreement or any other Loan Document, including, without limitation, the
negotiation, preparation, execution, administration, modification and enforcement of this Agreement
or any other Loan Document and all fees, including the reasonable fees and expenses of counsel to
Lender, costs and expenses of Lender in connection with audits, due diligence, transportation,
computer, duplication, consultants, search reports, all filing and recording fees, appraisals,
insurance, environmental inspection fees, survey fees and escrow fees, and (b) Lender for its
out-of-pocket expenses, including the reasonable fees and expenses of its counsel, in connection
with the enforcement of this Agreement or any other Loan Document.



     Section 11.3. Venue. BORROWER AND LENDER AGREE THAT DALLAS COUNTY, TEXAS IS PROPER VENUE FOR
ANY ACTION OR PROCEEDING BROUGHT BY BORROWER OR LENDER, WHETHER IN CONTRACT, TORT OR OTHERWISE.
ANY ACTION OR PROCEEDING AGAINST BORROWER MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT IN SUCH
COUNTY TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
BORROWER HEREBY IRREVOCABLY (A) SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS, AND (B)
WAIVES ANY OBJECTION BORROWER MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT OR THAT ANY SUCH COURT IS AN INCONVENIENT FORUM. BORROWER
AGREES THAT SERVICE OF PROCESS UPON BORROWER MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, AT BORROWER’S ADDRESSES SPECIFIED IN SECTION 11.4. LENDER MAY SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW AND MAY BRING ANY ACTION OR PROCEEDING AGAINST BORROWER OR WITH
RESPECT TO ANY OF BORROWER’S PROPERTIES IN COURTS IN OTHER PROPER JURISDICTIONS OR VENUES.



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     Section 11.4. Notices. All notices and other communications provided for herein shall be
in writing (including telex, facsimile, or cable communication) and shall be mailed, couriered,
telecopied, telexed, cabled or delivered addressed as follows:



If to Borrower, to it at:




5949 Sherry Lane, Suite 1400

Dallas, Texas 75225

Attention: Treasurer

Telephone: 972-713-3700

Fax: 972-713-3741




If to Lender, to it at:




Bank of Texas, N.A.

5956 Sherry Lane, Suite 1100

Dallas, Texas 75225

Attention: Ryan Suchala

Telephone: (214) 987-8876

Fax: (214) 987-8892




or as to Borrower or Lender, to such other address as shall be designated by such party in a
written notice to the other parties. All such notices and communications shall, when mailed,
delivered by courier, telecopied, telexed, transmitted, or cabled, become effective when three (3)
Business Days have elapsed after being deposited in the mail (with first class postage prepaid and
addressed as aforesaid), or when confirmed by telex answerback, transmitted to the correct
telecopier, or delivered to the courier or the cable company, except that notices and
communications from Borrower to Lender shall not be effective until actually received by Lender.




     Section 11.5. GOVERNING LAW. EACH LOAN DOCUMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES OF AMERICA.



     Section 11.6. Survival of Representations, Warranties and Covenants. All representations,
warranties and covenants contained herein or in the other Loan Documents or made in writing by
Borrower or any Subsidiary in connection herewith or therewith shall survive the execution and
delivery of this Agreement and the Note, and will bind and inure to the benefit of the respective
successors and assigns of the parties hereto, whether so expressed or not, provided that the
undertaking of Lender to make Advances to, or issue Letters of Credit for, Borrower shall not inure
to the benefit of any successor or assign of Borrower. No investigation at any time made by or on
behalf of Lender shall diminish Lender’s right to rely thereon.



     Section 11.7. Counterparts; Execution by Facsimile Transmission. This Agreement may be
executed in several counterparts, and by the parties hereto on separate counterparts, and each
counterpart, when so executed and delivered, shall constitute an original instrument, and all such
separate counterparts shall constitute but one and the same instrument. The method of



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execution of each Loan Document may be by means of facsimile transmission, and delivery
of such a facsimile transmission shall be deemed an original for purposes hereof, and each party so
delivering a facsimile transmission shall promptly thereafter deliver the original version thereof.




     Section 11.8. Separability. Should any clause, sentence, paragraph or section of this
Agreement be judicially declared to be invalid, unenforceable or void, such decision shall not have
the effect of invalidating or voiding the remainder of this Agreement, and the parties hereto agree
that the part or parts of this Agreement so held to be invalid, unenforceable or void will be
deemed to have been stricken herefrom and the remainder will have the same force and effectiveness
as if such part or parts had never been included herein. Each covenant contained in this Agreement
shall be construed (absent an express contrary provision herein) as being independent of each other
covenant contained herein, and compliance with any one covenant shall not (absent such an express
contrary provision) be deemed to excuse compliance with one or more other covenants.



     Section 11.9. Descriptive Headings. The section headings in this Agreement have been inserted
for convenience only and shall be given no substantive meaning or significance whatsoever in
construing the terms and provisions of this Agreement.



     Section 11.10. Setoff. Borrower, for itself and its Subsidiaries, hereby gives and confirms
to Lender a right of setoff of all moneys, securities and other property of Borrower or any
Subsidiary and the proceeds thereof, now or hereafter delivered to remain with or in transit in any
manner to Lender, its correspondents or its agents from or for Borrower or any Subsidiary, whether
for safekeeping, custody, pledge, transmission, collection or otherwise or coming into possession
of Lender in any way, and also, any balance of any deposit accounts and credits of Borrower or any
Subsidiary with, and any and all claims of security for the payment of the Note and of all other
liabilities and obligations now or hereafter owed by Borrower or any Subsidiary to Lender,
contracted with or acquired by Lender, whether such liabilities and obligations be joint, several,
absolute, contingent, secured, unsecured, matured or unmatured, and Borrower, for itself and its
Subsidiaries, hereby authorizes Lender at any time or times, while there is then continuing an
Event of Default without prior notice, to apply such money, securities, other property, proceeds,
balances, credits of claims, or any part of the foregoing, to any or all of the Obligations now or
hereafter existing, whether such Obligations be contingent, unmatured or otherwise, and whether any
collateral security therefor is deemed adequate or not. The rights described herein shall be in
addition to any collateral security described in any separate agreement executed by Borrower.



     Section 11.11. Successors and Assigns; Participations.




     (a) All covenants, promises and agreements by or on behalf of Borrower, its
Subsidiaries or Lender contained in this Agreement and the other Loan Documents shall bind
and inure to the benefit of their respective successors and permitted assigns. Neither
Borrower nor any Subsidiary may assign or transfer any of its rights or obligations under
the Loan Documents without the prior written consent of Lender, except in connection with
the consummation of a transaction permitted under Section 9.7.



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — TYLER TECHNOLOGIES, INC.






Page 38









 









     (b) Lender may sell participations to one or more banks or other financial
institutions in all or a portion of its rights and obligations under this Agreement and the
other Loan Documents (including all or a portion of any of its Commitment, the Loan and the
Obligations of Borrower owing to it and the Note held by it).




     (c) Notwithstanding any other provision herein, Lender may, in connection with any
assignment or participation or proposed assignment or participation pursuant to this Section
11.11, disclose to the assignee or participant or proposed assignee or participant, any
information relating to Borrower or any Subsidiary furnished to Lender by or on behalf of
Borrower or any Subsidiary.



     Section 11.12. Interest. All agreements between Borrower and Lender, whether now existing or
hereafter arising and whether written or oral, are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of demand being made on the Note or otherwise,
shall the amount contracted for, charged, reserved or received by Lender for the use, forbearance,
or detention of the money to be loaned under this Agreement or otherwise or for the payment or
performance of any covenant or obligation contained herein or in any other Loan Document exceed the
Highest Lawful Rate. If, as a result of any circumstances whatsoever, fulfillment by Borrower of
any provision hereof or of any of such documents, at the time performance of such provision shall
be due, shall involve transcending the limit of validity prescribed by applicable usury law or
result in Lender having or being deemed to have contracted for, charged, reserved or received
interest (or amounts deemed to be interest) in excess of the maximum lawful rate or amount of
interest allowed by applicable law to be so contracted for, charged, reserved or received by
Lender, then, ipso facto, the obligation to be fulfilled by Borrower shall be reduced to the limit
of such validity, and if, from any such circumstance, Lender shall ever receive interest or
anything which might be deemed interest under applicable law which would exceed the Highest Lawful
Rate, such amount which would be excessive interest shall be refunded to Borrower, or, to the
extent (i) permitted by applicable law and (ii) such excessive interest does not exceed the unpaid
principal balance of the Note and the amounts owing on other Obligations of Borrower to Lender
under any Loan Document, applied to the reduction of the principal amount owing on account of the
Note or the amounts owing on other Obligations of Borrower to Lender under any Loan Document and
not to the payment of interest. All sums paid or agreed to be paid to Lender for the use,
forbearance, or detention of the indebtedness of Borrower to Lender shall, to the extent permitted
by applicable law, be amortized, prorated, allocated, and spread throughout the full term of such
indebtedness until payment in full of the principal thereof (including the period of any renewal or
extension thereof) so that the interest on account of such indebtedness shall not exceed the
Highest Lawful Rate. The terms and provisions of this Section 11.12 shall control and supersede
every other provision hereof and of all other agreements between Borrower and Lender. Borrower and
Lender agree that Chapter 15 of the Texas Credit Code shall not apply to this Agreement, the Note,
the Loan or the Commitment.



     Section 11.13. Indemnification. Borrower agrees:




     (a) TO INDEMNIFY LENDER AND ITS AFFILIATES AND EACH OF ITS OFFICERS, DIRECTORS,
EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, AGENTS, ATTORNEYS, ACCOUNTANTS AND



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — TYLER TECHNOLOGIES, INC.






Page 39









 









EXPERTS (“INDEMNIFIED PARTIES”) FROM, HOLD EACH OF THEM HARMLESS AGAINST AND
PROMPTLY UPON DEMAND PAY OR REIMBURSE EACH OF THEM FOR, THE INDEMNITY MATTERS WHICH MAY BE
INCURRED BY OR ASSERTED AGAINST OR INVOLVE ANY OF THEM (WHETHER OR NOT ANY OF THEM IS
DESIGNATED A PARTY THERETO) AS A RESULT OF, ARISING OUT OF OR IN ANY WAY RELATED TO (I) ANY
ACTUAL OR PROPOSED USE BY BORROWER OF THE PROCEEDS OF THE LOAN, (II) THE EXECUTION, DELIVERY
AND PERFORMANCE OF THE LOAN DOCUMENTS, (III) THE OPERATION OF THE BUSINESS OF BORROWER OR
THE SUBSIDIARIES, (IV) THE FAILURE OF BORROWER OR ANY OF THE SUBSIDIARIES TO COMPLY WITH THE
TERMS OF ANY LOAN DOCUMENT OR WITH ANY GOVERNMENTAL REQUIREMENT, (V) ANY INACCURACY OF ANY
REPRESENTATION OR ANY BREACH OF ANY WARRANTY OF BORROWER OR ANY OF THE SUBSIDIARIES SET
FORTH IN ANY OF THE LOAN DOCUMENTS, (VI) ANY ASSERTION THAT LENDER WAS NOT ENTITLED TO
RECEIVE THE PROCEEDS RECEIVED PURSUANT TO THE LOAN DOCUMENTS OR (VII) ANY OTHER ASPECT OF
THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF
COUNSEL AND ALL OTHER EXPENSES INCURRED IN CONNECTION WITH INVESTIGATING, DEFENDING OR
PREPARING TO DEFEND ANY SUCH ACTION, SUIT, PROCEEDING (INCLUDING ANY INVESTIGATIONS,
LITIGATIONS OR INQUIRIES) OR CLAIM AND INCLUDING ALL INDEMNITY MATTERS ARISING BY REASON OF
THE NEGLIGENCE OF ANY INDEMNIFIED PARTY (EXCEPT AS TO THE EXTENT ANY SUCH INDEMNITY MATTERS
HAVE BEEN CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTY, IT
BEING THE INTENT OF THE PARTIES THAT EACH INDEMNIFIED PARTY SHALL BE INDEMNIFIED FROM
INDEMNITY MATTERS CAUSED BY THE NEGLIGENCE, WHETHER SOLE, JOINT, CONCURRENT, CONTRIBUTORY,
ACTIVE OR PASSIVE, OF SUCH INDEMNIFIED PARTY), PROVIDED, HOWEVER, THAT THE PROVISIONS OF
THIS SECTION 11.13(a) SHALL NOT BE APPLICABLE TO ANY ACTION INITIATED BY BORROWER AGAINST
LENDER FOR BREACH OF CONTRACTUAL OBLIGATION CONTAINED IN ANY OF THE LOAN DOCUMENTS IN WHICH
BORROWER IS THE PREVAILING PARTY; AND




     (b) TO INDEMNIFY AND HOLD HARMLESS FROM TIME TO TIME THE INDEMNIFIED PARTY FROM AND
AGAINST ANY AND ALL LOSSES, CLAIMS, COST RECOVERY ACTIONS, ADMINISTRATIVE ORDERS OR
PROCEEDINGS, DAMAGES AND LIABILITIES TO WHICH ANY SUCH PERSON MAY BECOME SUBJECT (I) UNDER
ANY ENVIRONMENTAL LAW APPLICABLE TO BORROWER, THE SUBSIDIARIES, OR ANY OF THEIR PROPERTIES,
INCLUDING, WITHOUT LIMITATION, THE TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES ON ANY OF
THEIR PROPERTIES, (II) AS A RESULT OF THE BREACH OR NON-COMPLIANCE



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — TYLER TECHNOLOGIES, INC.






Page 40









 









BY BORROWER OR ANY SUBSIDIARY WITH ANY ENVIRONMENTAL LAW APPLICABLE TO BORROWER OR
ANY SUBSIDIARY, (III) DUE TO PAST OWNERSHIP BY BORROWER OR ANY SUBSIDIARY OF ANY OF ITS
PROPERTIES OR PAST ACTIVITY ON ANY OF ITS PROPERTIES WHICH, THOUGH LAWFUL AND FULLY
PERMISSIBLE AT THE TIME, COULD RESULT IN PRESENT LIABILITY, (IV) THE PRESENCE, USE, RELEASE,
STORAGE, TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES ON OR AT ANY OF THE PROPERTIES OWNED
OR OPERATED BY BORROWER OR ANY SUBSIDIARY OR (V) ANY OTHER ENVIRONMENTAL, HEALTH OR SAFETY
CONDITION IN CONNECTION WITH THE BUSINESS OF BORROWER OR ANY SUBSIDIARY.




     (c) Borrower’s obligations under this Section 11.13 shall survive the termination of
this Agreement and the payment in full of the Note and all other amounts payable hereunder.



     Section 11.14. Payments Set Aside. To the extent any payments on the Obligations or proceeds
of any Collateral or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to
be repaid to a trustee, receiver or any other Person under any debtor relief Law, then to the
extent of such recovery, the Obligations or part thereof originally intended to be satisfied, and
all rights and remedies therefor, shall be revived and shall continue in full force and effect, and
Lender’s rights, powers and remedies under this Agreement and each other Loan Document shall
continue in full force and effect, as if such payment had not been made or such enforcement or
setoff had not occurred. In such event, each Loan Document shall be automatically reinstated and
Borrower and each Subsidiary shall take such action as may be reasonably requested by Lender to
effect such reinstatement.



     Section 11.15. Amendments, Etc. No amendment or waiver of any provision of this Agreement,
the Note or any other Loan Document, nor consent to any departure by Borrower or any Subsidiary
herefrom or therefrom, shall in any event be effective unless the same shall be in writing and
signed by Borrower and/or the applicable Subsidiary, as to amendments, and by Lender in all cases,
and then, in any case, such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.



     Section 11.16. Relationship of the Parties. This Agreement provides for the making of a loan
by Lender, in its capacity as a lender, to Borrower, in its capacity as a borrower, and for the
payment of interest and repayment of principal by Borrower to Lender. The relationship between
Lender and Borrower is limited to that of creditor/secured party, on the one hand, and debtor, on
the other hand. The provisions herein for compliance with financial, environmental, and other
covenants, delivery of financial, environmental and other reports, and financial, environmental and
other inspections, investigations, audits, examinations or tests are intended solely for the
benefit of Lender to protect its interests as a lender in assuring payments of interest and
repayment of principal and nothing contained in this Agreement or any other Loan Document shall be
construed as permitting or obligating Lender to act as financial or business
advisors or consultants to Borrower or any Subsidiary, as permitting or obligating Lender to
control Borrower or any Subsidiary or to conduct or operate Borrower’s or any Subsidiary’s



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — TYLER TECHNOLOGIES, INC.






Page 41









 








operations, as creating any fiduciary obligation on the part of Lender to Borrower or any
Subsidiary, or as creating any joint venture, agency, or other relationship between the parties
other than as explicitly and specifically stated in this Agreement. Borrower acknowledges that it
has had the opportunity to obtain the advice of experienced counsel of its own choosing in
connection with the negotiation and execution of this Agreement and the other Loan Documents and to
obtain the advice of such counsel with respect to all matters contained herein. Borrower further
acknowledges that it is experienced with respect to financial and credit matters and has made its
own independent decision to apply to Lender for the financial accommodations provided hereby and to
execute and deliver this Agreement and the other Loan Documents.




     Section 11.17. Certain Matters of Construction. The masculine and neuter genders used in this
Agreement each includes the masculine, feminine and neuter genders, and whenever the singular
number is used, the same shall include the plural where appropriate, and vice versa. Wherever the
term “including” or a similar term is used in this Agreement, it shall be read as if it were
written “including by way of example only and without in any way limiting the generality of the
clause or concept referred to.”



     Section 11.18. USA Patriot Act Notice. Lender hereby notifies the Borrower that pursuant to
the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower and other information
that will allow Lender to identify the Borrower in accordance with the Act.



     Section 11.19. FINAL AGREEMENT. THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
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 ORAL
AGREEMENTS BETWEEN THE PARTIES.



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — TYLER TECHNOLOGIES, INC.



Page 42











 





     IN WITNESS WHEREOF, the parties hereto, by their respective officers thereunto duly
authorized, have executed this Agreement effective as of October 19, 2009.



	 	 	 	 	 
	 	BORROWER:





TYLER TECHNOLOGIES, INC., a Delaware

corporation

 	 
	 	By:  	
 	 
	 	 	Brian K. Miller, 	 
	 	 	Executive Vice President and

Chief Financial Officer 	 
	 
	 	LENDER:





BANK OF TEXAS, N.A., a national banking

association

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — TYLER TECHNOLOGIES, INC.




	 	 	 	 	 



Page 43









 






	 	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 



SCHEDULE I




PRICING SCHEDULE




	 	 	 	 	 
	TYPE OR FEE	 	MARGIN
	Base Rate Portion
	 	 	0.50	%
	LIBOR Rate Portion
	 	 	2.0	%
	Letter of Credit
	 	 	0.75	%
	Revolving LC Margin
	 	 	1.0	%






THIRD AMENDED AND RESTATED CREDIT AGREEMENT — TYLER TECHNOLOGIES, INC.





Page 1









 








SCHEDULE II




REAL ESTATE CAPITAL EXPENDITURES




	 	 	 
	Real Estate Capital Expenditures Schedule
	Quarter ending 6/30/2009	 	Quarter ending 9/30/2009
	$1,885,000

	 	$3,549,000






THIRD AMENDED AND RESTATED CREDIT AGREEMENT — TYLER TECHNOLOGIES, INC.





Page 1









 








SCHEDULE 9.10




PERMITTED INVESTMENTS




	 	 	 	 	 	 	 
	Agent	 	Investment Description	 	Amount	 
	Treasury Partners
	 	FEDERATED T/F OBLIGATN FD-IS (TBIXX)	 	$	1,556.34	 
	 
	 	Louisville & Jefferson Cnty KY Regl Arpt — Auction Rate	 	$	925,000	 
	 
	 	 	 	 	 
	 
	 	 	 	$	926,556.34	 
	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	BOSC Pershing
Investment
	 	Jefferson County — Auction Rate	 	$	1,725,000	 
	 
	 	 	 	 	 
	 
	 	 	 	$	1,725,000.00	 
	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	Bank of Texas
	 	Money Market Investment	 	$	6,059,300.46	 
	 
	 	Collected balance	 	$	100,282.45	 
	 
	 	 	 	 	 
	 
	 	 	 	$	6,159,582.91	 
	 
	 	 	 	 	 





THIRD AMENDED AND RESTATED CREDIT AGREEMENT — SCHEDULE I





Page 1









 








EXHIBIT A-1




Form of Revolving Note




AMENDED AND RESTATED PROMISSORY NOTE

(Revolving Line of Credit)




					
	 	 	 	 	 
	$25,000,000
	 	Dallas, Texas
	 	October 19, 2009






     FOR VALUE RECEIVED, the undersigned, TYLER TECHNOLOGIES, INC., a Delaware corporation (the
“Undersigned”), promises to pay to the order of BANK OF TEXAS, N.A., a national banking
association, and any successors and assigns (the “Payee”), at 5956 Sherry Lane, Suite 1100,
Dallas, Texas 75225, the principal sum of Twenty Five Million and no/100 Dollars ($25,000,000) (or
the unpaid balance of all principal advanced under this Note, if that amount is less) together with
interest on the unpaid principal balance of this Note from day to day outstanding, as hereinafter
provided. All capitalized terms herein, unless otherwise defined, shall have the same definitions
as those found in that certain Third Amended and Restated Credit Agreement by and between the
Undersigned and Payee dated of even date herewith, as amended on the date hereof (as amended, the
“Credit Agreement”). This Note amends and restates in its entirety that certain Promissory
Note (Letter of Credit Facility) (the “Existing Note”) dated October 20, 2008, executed by
the Undersigned, payable to Bank of Texas, N.A. in the principal amount of $25,000,000.00. All
Liens securing the Existing Note are renewed and continued (and are not extinguished hereby) and
secure this Note.



     This Note shall evidence the Undersigned’s indebtedness to Payee for Payee’s portion of the
Revolving Commitment, and advances made thereunder.



     The Loan shall bear interest on the unpaid principal amount thereof from time to time
outstanding, until maturity, at the interest rates as provided in, and pursuant to the terms of,
the Credit Agreement.



     Interest and principal on this Note shall be due and payable as provided in the Credit
Agreement. The final principal payment and any unpaid interest owing hereunder shall be due and
payable in full on the Maturity Date. The principal balance hereof may be, and shall be required
to be, prepaid as provided in the Credit Agreement.



     This Note is a revolving promissory note; therefore, amounts advanced hereunder may be repaid,
readvanced and repaid pursuant to the terms set forth in the Credit Agreement.



     At the option of the holder of this Note the entire principal balance and accrued interest
owing hereon shall become due and payable without further demand upon the occurrence at any time of
any Event of Default under the Credit Agreement.



     Except as otherwise set forth in this Note or the Credit Agreement, the Undersigned waives
demand, presentment for payment, notice of nonpayment, protest, notice of protest, notice of
dishonor, notice of intent to accelerate, notice of acceleration and all other notice of any



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT A-1




Page 1









 




kind, filing of suit and diligence in collecting this Note or enforcing any of the security
herefor, and consents to all extensions which from time to time may be granted by the holder hereof
and to all partial payments hereon, whether before or after maturity.




     If this Note is not paid when due, whether at maturity or by acceleration or otherwise, or if
it is collected through a bankruptcy, probate or other judicial or administrative proceeding,
whether before or after maturity, the Undersigned agrees to pay all reasonable costs of collection,
including, but not limited to, reasonable attorneys’ fees, incurred by the holder hereof.



     Any provisions herein, or in any other document executed in connection herewith, or in any
other agreement or commitment, whether written or oral, expressed or implied, to the contrary
notwithstanding, the holder hereof shall in no event charge or be entitled to receive or collect,
nor shall or may amounts received hereunder be credited, so that the holder hereof shall be paid,
as interest, a sum greater than the maximum permitted by applicable law to be charged to the
person, partnership, firm or corporation primarily obligated to pay this Note. If any construction
of this Note, or any and all other papers, agreements or commitments, indicates a different right
given to the holder hereof to ask for, demand or receive any larger sum as interest, such is a
mistake in calculation or wording, which this clause shall override and control; it being the
intention of the parties that this Note and all other instruments executed in connection herewith
shall in all things comply with applicable law, and proper adjustment shall automatically be made
accordingly. In the event the holder hereof ever receives, collects or applies as interest, any
sum in excess of the maximum permitted by applicable law, such excess amount shall be applied to
the reduction of the unpaid principal balance of this Note, in the inverse order of maturity, and
not to interest, and if this Note is paid in full, any remaining excess shall be refunded to the
Undersigned. In determining whether or not the interest paid or payable, under any specific
contingency, exceeds the maximum permitted by applicable law, the Undersigned and the holder hereof
shall, to the maximum extent permitted under applicable law: (i) characterize any nonprincipal
payment as an expense, fee or premium rather than as interest; (ii) exclude voluntary prepayments
and the effects thereof; and (iii) amortize, prorate, allocate and spread the total amount of
interest throughout the entire term of this Note (including any renewals or extensions) so that the
interest rate is uniform throughout the entire term of this Note and does not exceed the maximum
permitted by applicable law. The provisions of this paragraph shall control all existing and
future agreements between the Undersigned and the holder hereof.



     This Note is executed and delivered in the State of Texas and intended to be performed in
Dallas County, Texas, and except to the extent that the laws of the United States of America may
pre-empt or govern the terms hereof, this Note shall be governed by and construed in accordance
with the laws of the State of Texas; and the Undersigned irrevocably agrees that in the event of
any dispute involving this Note or any other instruments executed in connection herewith, venue for
such dispute shall lie in any court of competent jurisdiction in Dallas County, Texas.



     This Note and all the covenants, promises and agreements contained herein shall be binding
upon and inure to the benefit of the respective heirs, devisees, legal and personal
representatives, successors and assigns of the holder hereof and the Undersigned.



     THIS NOTE AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT A-1




Page 2









 




EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.




THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT A-1





Page 3









 







     EXECUTED effective as of the date first written above.




	 	 	 	 	 
	 	TYLER TECHNOLOGIES, INC.

 	 
	 	By:  	
 	 
	 	 	Brian K. Miller, 	 
	 	 	Executive Vice President and

Chief Financial Officer 	 
	 



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT A-1





Page 4









 








EXHIBIT A-2




Form of Letter of Credit Facility Note




THIRD AMENDED AND RESTATED PROMISSORY NOTE

(Letter of Credit Facility)




					
	 	 	 	 	 
	$10,000,000
	 	Dallas, Texas
	 	October 19, 2009






     FOR VALUE RECEIVED, the undersigned, TYLER TECHNOLOGIES, INC., a Delaware corporation (the
“Undersigned”), promises to pay to the order of BANK OF TEXAS, N.A., a national banking
association, and any successors and assigns (the “Payee”), at 5956 Sherry Lane, Suite 1100,
Dallas, Texas 75225, the principal sum of Ten Million and No/100 Dollars ($10,000,000) (or the
unpaid balance of all principal advanced under this Note, if that amount is less) together with
interest on the unpaid principal balance of this Note from day to day outstanding, as hereinafter
provided. All capitalized terms herein, unless otherwise defined, shall have the same definitions
as those found in that certain Third Amended and Restated Credit Agreement by and between the
Undersigned and Payee dated of even date herewith, as amended on the date hereof (as amended, the
“Credit Agreement”). This Note amends and restates in its entirety that certain Second
Amended and Restated Promissory Note (Letter of Credit Facility) (the “Existing Note”)
dated October 20, 2008, executed by the Undersigned, payable to Bank of Texas, N.A. in the
principal amount of $6,000,000.00, which amended and restated that certain Amended and Restated
Promissory Note (Letter of Credit Facility) dated January 31, 2007, executed by the Undersigned,
payable to Bank of Texas, N.A. in the principal amount of $10,000,000.00. All Liens securing the
Existing Note are renewed and continued (and are not extinguished hereby) and secure this Note.



     This Note shall evidence the Undersigned’s indebtedness to Payee for Payee’s portion of the
Letter of Credit Commitment, and advances made thereunder.



     The Loan shall bear interest on the unpaid principal amount thereof from time to time
outstanding, until maturity, at the interest rates as provided in, and pursuant to the terms of,
the Credit Agreement.



     Interest and principal on this Note shall be due and payable as provided in the Credit
Agreement. The final principal payment and any unpaid interest owing hereunder shall be due and
payable in full on the Maturity Date. The principal balance hereof may be, and shall be required
to be, prepaid as provided in the Credit Agreement.



     This Note is a revolving promissory note; therefore, amounts advanced hereunder may be repaid,
readvanced and repaid pursuant to the terms set forth in the Credit Agreement.



     At the option of the holder of this Note the entire principal balance and accrued interest
owing hereon shall become due and payable without further demand upon the occurrence at any time of
any Event of Default under the Credit Agreement.



 









 





     Except as otherwise set forth in this Note or the Credit Agreement, the Undersigned waives
demand, presentment for payment, notice of nonpayment, protest, notice of protest, notice of
dishonor, notice of intent to accelerate, notice of acceleration and all other notice of any kind,
filing of suit and diligence in collecting this Note or enforcing any of the security herefor, and
consents to all extensions which from time to time may be granted by the holder hereof and to all
partial payments hereon, whether before or after maturity.



     If this Note is not paid when due, whether at maturity or by acceleration or otherwise, or if
it is collected through a bankruptcy, probate or other judicial or administrative proceeding,
whether before or after maturity, the Undersigned agrees to pay all reasonable costs of collection,
including, but not limited to, reasonable attorneys’ fees, incurred by the holder hereof.



     Any provisions herein, or in any other document executed in connection herewith, or in any
other agreement or commitment, whether written or oral, expressed or implied, to the contrary
notwithstanding, the holder hereof shall in no event charge or be entitled to receive or collect,
nor shall or may amounts received hereunder be credited, so that the holder hereof shall be paid,
as interest, a sum greater than the maximum permitted by applicable law to be charged to the
person, partnership, firm or corporation primarily obligated to pay this Note. If any construction
of this Note, or any and all other papers, agreements or commitments, indicates a different right
given to the holder hereof to ask for, demand or receive any larger sum as interest, such is a
mistake in calculation or wording, which this clause shall override and control; it being the
intention of the parties that this Note and all other instruments executed in connection herewith
shall in all things comply with applicable law, and proper adjustment shall automatically be made
accordingly. In the event the holder hereof ever receives, collects or applies as interest, any
sum in excess of the maximum permitted by applicable law, such excess amount shall be applied to
the reduction of the unpaid principal balance of this Note, in the inverse order of maturity, and
not to interest, and if this Note is paid in full, any remaining excess shall be refunded to the
Undersigned. In determining whether or not the interest paid or payable, under any specific
contingency, exceeds the maximum permitted by applicable law, the Undersigned and the holder hereof
shall, to the maximum extent permitted under applicable law: (i) characterize any nonprincipal
payment as an expense, fee or premium rather than as interest; (ii) exclude voluntary prepayments
and the effects thereof; and (iii) amortize, prorate, allocate and spread the total amount of
interest throughout the entire term of this Note (including any renewals or extensions) so that the
interest rate is uniform throughout the entire term of this Note and does not exceed the maximum
permitted by applicable law. The provisions of this paragraph shall control all existing and
future agreements between the Undersigned and the holder hereof.



     This Note is executed and delivered in the State of Texas and intended to be performed in
Dallas County, Texas, and except to the extent that the laws of the United States of America may
pre-empt or govern the terms hereof, this Note shall be governed by and construed in accordance
with the laws of the State of Texas; and the Undersigned irrevocably agrees that in the event of
any dispute involving this Note or any other instruments executed in connection herewith, venue for
such dispute shall lie in any court of competent jurisdiction in Dallas County, Texas.



     This Note and all the covenants, promises and agreements contained herein shall be binding
upon and inure to the benefit of the respective heirs, devisees, legal and personal
representatives, successors and assigns of the holder hereof and the Undersigned.



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT A-1




Page 2









 





     THIS NOTE AND THE OTHER LOAN DOCUMENTS REPRESENT 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 ORAL AGREEMENTS BETWEEN THE PARTIES.



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT A-1




Page 3









 




     EXECUTED effective as of the date first written above.




	 	 	 	 	 
	 	TYLER TECHNOLOGIES, INC.

 	 
	 	By:  	
 	 
	 	 	Brian K. Miller, 	 
	 	 	Executive Vice President and

Chief Financial Officer 	 
	 



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT A-1



Page 4









 







EXHIBIT B-1




Notice of Borrowing





     This Notice of Borrowing is being delivered by TYLER TECHNOLOGIES, INC., a Delaware
corporation (“Borrower”), as borrower under that certain Third Amended and Restated Credit
Agreement (the “Credit Agreement”), dated as of October 19, 2009, executed by Borrower and
Bank of Texas, N.A., a national banking association (the “Lender”). Unless defined herein
or indicated otherwise, each capitalized term used herein shall have the meaning given to such term
in the Credit Agreement.



     1. Borrower hereby requests an Advance in an amount equal to $                     to be funded on
                    . Borrower represents and warrants to Lender that the Advance herein requested does not
exceed the amount which Borrower is entitled to receive pursuant to Section 2.1 (or any other
provision) of the Credit Agreement.



     2. Borrower requests that of the Advance requested hereby, $                     bear interest based
at the Base Rate and $                     bear interest based at the Adjusted LIBOR Rate. With respect
to the LIBOR Rate Portion, the Rate Period shall be ___ month(s), with the first day of the Rate
Period being the date on which the LIBOR Rate Portion is funded.



     3. Borrower hereby certifies, represents and warrants to Lender that:




     (b) This Request for Advance has been duly authorized by all necessary action on the
part of Borrower.




     (c) The representations and warranties contained in the Credit Agreement and the other
Loan Documents remain true and correct in all material respects on and as of the date hereof
(except to the extent any representation or warranty is made as of a particular date) with
the same force and effect as though made on the date hereof.




     (d) No Default or Event of Default has occurred and is continuing, and the making of
the Advance requested hereby shall not constitute a Default or Event of Default.




     (e) Borrower has performed and complied in all material respects with all agreements
and conditions in the Credit Agreement and the other Loan Documents required to be performed
or complied with by such Borrower on or prior to the date hereof, and each of the conditions
precedent contained in the Credit Agreement applicable to the Advance requested hereby has
been satisfied.




     (f) The proceeds of the Advance requested will not be used in violation of any
provision of the Credit Agreement or any other Loan Document.



     4. Borrower acknowledges and agrees that the making of the Advance requested hereby shall not
constitute a waiver of any condition precedent to the obligation of Lender to make further
Advances.



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT B-1




Page 1









 





     EXECUTED as of                     , 20___.



	 	 	 	 	 
	 	AUTHORIZED OFFICER:





TYLER TECHNOLOGIES, INC., 

a Delaware corporation

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT B-1





Page 2









 





EXHIBIT B-2

Letter of Credit Application




THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT B-2





Page 1











 





EXHIBIT C




Notice of Rate Change/Continuation




     This Notice of Rate Change/Continuation (the “Notice”) is being delivered by TYLER
TECHNOLOGIES, INC., a Delaware corporation (“Borrower”), as borrower under that certain
Third Amended and Restated Credit Agreement (the “Credit Agreement”), dated as of October
19, 2009, executed by Borrower, and Bank of Texas, N.A., a national banking association (the
“Lender”). Unless defined herein or indicated otherwise, each capitalized term used herein
shall have the meaning given to such term in the Credit Agreement.



     1. Interest Rate Change




Pursuant to Section 3.1(b) of the Credit Agreement, Borrower hereby elects to change
the interest rates applying to the portions of the Loan listed below. Borrower
provides the following information: (a) Amount of Loan to be affected, (b) date on
which the current interest rate applicable to the affected portion of the Loan
became effected, (c) Type of interest rate currently applied (LIBOR or Base Rate),
(d) interest rate currently applicable to such portion, (e) Type of interest rate to
be applied from the effective date of this Notice (LIBOR or Base Rate), and (f) if a
LIBOR Portion is requested, the requested Rate Period.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Type of Interest to	 	 	Requested Rate	 
	Amount	 	Date	 	 	Type (current)	 	 	Rate (current)	 	 	be Applied	 	 	Period	 
	                    
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	                     
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	                     
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





     2. Continuation of LIBOR Rate Portion




Pursuant to Section 3.1(b) of the Credit Agreement, Borrower hereby elects to
continue the outstanding principal balances of the below listed LIBOR Rate Portions
as such LIBOR Rate Portions. Borrower provides the following information: (a) The
principal amount of such LIBOR Rate Portion to remain outstanding, (b) first date of
the current Rate Period, (c) current Rate Period, and (d) requested Rate Period



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Amount to Remain	 	 	 	 	 	 	 	 	 	Requested Rate	 
	Outstanding	 	Date	 	 	Current Rate Period	 	 	Period	 
	                                        
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	                                        
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	                                        
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 





     3. Borrower requests this rate change or continuation to be effective as of the     day of
                    ,            (the “Conversion/Continuation Date”). Each rate so specified



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT C




Page 1









 




shall become effective on the Conversion/Continuation Date and remain in effect until the
expiration of the applicable Rate Period.




     4. Borrower hereby certifies, represents and warrants to Lender that:



     5. This Notice has been duly authorized by all necessary action on the part of Borrower.



     6. Borrower has performed and complied in all material respects with all agreements and
conditions in the Credit Agreement and the other Loan Documents required to be performed or
complied with by such Borrower on or prior to the date hereof.



     7. This Notice is irrevocable.



     EXECUTED as of                     , 20     .



	 	 	 	 	 
	 	AUTHORIZED OFFICER:



TYLER TECHNOLOGIES, INC.,

a Delaware corporation

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT C





Page 2









 








EXHIBIT D




Compliance Certificate





     This Compliance Certificate is furnished pursuant to that certain Third Amended and Restated
Credit Agreement dated as of October 19, 2009 (as amended, modified, renewed or extended from time
to time, the “Credit Agreement”) among TYLER TECHNOLOGIES, INC. (the “Borrower”),
Bank of Texas, N.A., a national banking association (the “Lender”). Unless otherwise
defined herein, capitalized terms used in this Compliance Certificate have the meanings ascribed
thereto in the Credit Agreement.



     THE UNDERSIGNED HEREBY CERTIFIES TO LENDER THAT:



     1. I am the duly elected                      of the Borrower;



     2. I have reviewed the terms of the Credit Agreement and I have made, or have caused to be
made under my supervision, a detailed review of the transactions and conditions of the Borrower and
its Subsidiaries during the accounting period covered by the attached financial statements.



     3. The reviews described in paragraph 2 did not disclose, and I have no knowledge of, the
existence of any condition or event which constitutes a Default or Event of Default during or at
the end of the accounting period covered by the attached financial statements or as of the date of
this Certificate, except as set forth below.



     4. Schedule I attached hereto sets forth financial data and computations evidencing the
Borrower’s compliance with certain covenants of the Credit Agreement as of the            ended
          , all of which data and computations are true, complete and correct in all material
respects, and are based upon and derived from the financial statements for the                 ended
                     concurrently being furnished by Borrower pursuant to Section 8.1 of the
Credit Agreement prepared in accordance with GAAP.



     5. Schedule II attached hereto sets forth the various reports and deliveries which are
required at this time under the Credit Agreement, and the other Loan Documents and the status of
compliance.



     Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature
of the condition or event, the period during which it has existed and the action which the Borrower
has taken, is taking, or proposes to take with respect to each such condition or event:



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT D



Page 1









 





     The foregoing certifications are made and delivered this            day of                     ,           .



	 	 	 	 	 
	 	TYLER TECHNOLOGIES, INC., a
Delaware
corporation

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT D





Page 2











 





SCHEDULE I




TO




COMPLIANCE CERTIFICATE




Compliance as of                     , ___with

Section 9.9 of the Credit Agreement




1. Section 9.9(a) — Funded Debt to EBITDA




	 	 	 	 	 
	(a) Outstanding liabilities for borrowed money and other
interest bearing liabilities
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(b) Unfunded commitments under outstanding letters of
credit (excluding cash collateralized letters of credit)
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(c) Funded Debt (sum of (a) + (b))
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(d) Consolidated net income for the two fiscal quarters
ended [quarter for which Compliance Certificate is
being furnished]
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(e) Income from discontinued operations and
extraordinary items for the two fiscal quarters
ended [quarter for which Compliance Certificate is
being furnished]
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(f) Loss from discontinued operations and
extraordinary items for the two fiscal quarters
ended [quarter for which Compliance Certificate is
being furnished]
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(g) The following, each for the two fiscal quarters
ended [quarter for which Compliance Certificate is
being furnished], as deducted in determining
consolidated net income for such period:
	 	 	 	 






	 	 	 	 	 	 	 	 	 
	(i) Income Taxes
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	(ii) Depreciation
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	(iii) Amortization
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	(iv) Interest expense
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	(v) Other non-cash expenses
	 	$	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 





THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT D



Page 3










 






	 	 	 	 	 
	(h) EBITDA for the two fiscal quarters ended [quarter
for which Compliance Certificate is being furnished]
(sum of (d) + (f) +(g) minus (e))
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(i) EBITDA, multiplied by two (2) [(h), multiplied
by two (2)]
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(j) Cash paid for taxes during the two fiscal quarters ended,
multiplied by two [quarter for which Compliance
Certificate is being furnished]
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(k) Cash paid for Capital Expenditures (as defined in the
Credit Agreement) during the two fiscal quarters ended,
multiplied by two [quarter for which Compliance
Certificate is being furnished]
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(l) Remainder derived by subtracting from (i) the
sum of (j)+(k)
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(m) Ratio of Funded Debt to EBITDA ((c) divided by (l))
	 	 	 	 
	 
	 	 	 	 




Borrower is in compliance with Section 9.9(a) of the Credit Agreement if line (m) is equal to less
than 1.5.




2. Section 9.9(b) — Fixed Charge Coverage




	 	 	 	 	 
	(a) EBITDA for the two fiscal quarters ended,
multiplied by two (2) [quarter for which
Compliance Certificate is being furnished]
(line (i) from Section 1 preceding)
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(b) Cash paid for taxes during the two fiscal quarters ended
multiplied by two [quarter for which Compliance
Certificate is being furnished]
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(c) Cash paid for Capital Expenditures (as defined in the
Credit Agreement) during the two fiscal quarters ended,
multiplied by two [quarter for which Compliance
Certificate is being furnished]
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(d) Remainder derived by subtracting from (a) the
sum of (b)+(c)
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(e) Current Maturities (as defined in the Credit Agreement)
as of the last day of the four fiscal quarters ended [quarter
for which Compliance Certificate is being furnished]
	 	$	 	 
	 
	 	 	 	 





THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT D



Page 4









 






	 	 	 	 	 
	(f) Interest Expense (as defined in the Credit Agreement)
as of the last day of the two fiscal quarters ended,
multiplied by two [quarter for which Compliance
Certificate is being furnished]
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(g) Current maturities of Capitalized Lease Obligations
(as defined in the Credit Agreement), without
duplication of interest expense included in (f), as of
the last day of the four fiscal quarters ended [quarter
for which Compliance Certificate is being furnished]
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(h) The sum of (e)+(f)+(g)
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(i) Fixed Charge Coverage (line (d) divided by line (h)
	 	$	 	 
	 
	 	 	 	 




Borrower is in compliance with Section 9.9(b) of the Credit Agreement if line (i) is equal to or
greater than 2.0.




3. Section 9.5 — Dividends 9(b) — Fiscal Year 2009




	 	 	 	 	 
	(a) Dollar amount of Borrower’s stock repurchased by
Borrower from October 19, 2009 until the end of
Borrower’s fiscal year 2009
	 	$	 	 
	 
	 	 	 	 




Borrower is in compliance with Section 9.5 of the Credit Agreement for Borrower’s fiscal year 2009
if line (a) is less than or equal to $5,000,000.




1. Section 9.5 — Dividends 9(b) — Fiscal Year 2010 and after




For Reporting Period ended 3/31/2010:




	 	 	 	 	 
	(a) Borrower’s Initial $15,000,000 for Stock Repurchases
	 	$	15,000,000	 
	 
	 	 	 	 
	 
	 	 	 	 
	(b) Borrower’s Net Cash Position at 12/31/2009 (not to
exceed $15,000,000)
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(c) Total amount available for Stock Repurchases during this Reporting Period [line (a)
plus line (b)]
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(d) Total amount of stock repurchased this Reporting Period
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	At 3/31/2010, Borrower is in compliance if line (d) is less
than or equal to line (c). In compliance?
	 	 	Y/N	 






THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT D



Page 5









 







	 	 	 	 	 
	(e) Borrower’s Net Cash Position at 3/31/2010 (not to
exceed $15,000,000)
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(f) Remaining amount of stock available to be repurchased
for the next reporting period [line (a) plus line (e)
minus line (d)]
	 	$	 	 
	 
	 	 	 	 





For Reporting Period ended 6/30/2010:




	 	 	 	 	 
	(g) Total amount of stock available to be repurchased during
this Reporting Period [insert line (f)]
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(h) Total amount of stock repurchased this Reporting Period
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	At 6/30/2010, Borrower is in compliance if line (h) is less
than or equal to line (g). In compliance?
	 	 	Y/N	 
	 
	 	 	 	 
	 
	 	 	 	 
	(i) Borrower’s Net Cash Position at 6/30/2010 (not to
exceed $15,000,000)
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(j) Remaining amount of stock available to be repurchased
or the next reporting period [line (a) plus line (i) minus
line (d) minus line (h)]
	 	$	 	 
	 
	 	 	 	 





For Reporting Period ended 9/30/2010:




	 	 	 	 	 
	(k) Total amount of stock available to be repurchased during
this Reporting Period [insert line (j)]
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(l) Total amount of stock repurchased the Reporting Period
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	At 9/30/2010, Borrower is in compliance if line (l) is less
than or equal to line (k). In compliance?
	 	 	Y/N	 






THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT D



Page 6









 






SCHEDULE II

TO




COMPLIANCE CERTIFICATE




Reports and Deliveries Currently Due



[For Compliance Certificate accompanying annual financial statements furnished under Section 8.1(a)
of the Credit Agreement]:



Borrower’s consolidated financial statements for the fiscal year ended                     , required and
furnished pursuant to Section 8.1(a) of the Credit Agreement are furnished concurrently with this
Compliance Certificate, as follows:





	 	(a)	 	Consolidated balance sheet.
	 
	 	(b)	 	Consolidated statements of income, retained earnings and cash flows.
	 
	 	(c)	 	Notes to consolidated financial statements.
	 
	 	(d)	 	Report and opinion of [Ernst & Young LLP]
	 
	 	(e)	 	Consolidating balance sheets and statements of income for the fiscal year ended
_________ (each certified by an Authorized Officer of Borrower) for each of Borrower and
the following Subsidiaries:




[For Compliance Certificate accompanying quarterly financial statements furnished under Section
8.1(b) of the Credit Agreement]:



Borrower’s consolidated financial statements (unaudited) for the fiscal quarter ended                     
(certified by an Authorized Officer of Borrower), required and furnished pursuant to Section 8.1(b)
of the Credit Agreement are furnished concurrently with this Compliance Certificate, as follows:





	 	(a)	 	Consolidated balance sheet (unaudited).
	 
	 	(b)	 	Consolidated statement of income (unaudited).
	 
	 	(c)	 	Consolidated statement of cash flow (unaudited).





THIRD AMENDED AND RESTATED CREDIT AGREEMENT — EXHIBIT D





Page 7