**Exhibit 10.1**

 

**THIRD AMENDMENT TO**

**AMENDED AND RESTATED LOAN AND SECURITYAGREEMENT**

 

**THIS THIRD AMENDMENT TO THE AMENDED ANDRESTATED LOAN AND SECURITY AGREEMENT**, (the “Amendment”)effective as of October 31, 2005, is entered into by and between **EBIX, INC**., a Delaware corporation f/k/a **EBIX.COM, INC**. (the “Borrower”), and **LaSALLE BANK NATIONAL ASSOCATION**, a national banking association (the “Bank”).

 

**RECITALS**

 

**WHEREAS,** the Bankhas previously loaned or committed to loan the Borrower the original principalsum of up to $5,000,000.00, comprised of a certain Revolving Credit LoanCommitment not to exceed the sum of $5,000,000.00 as evidenced, secured andgoverned by, among other documentation, that certain Business Loan Agreementdated as of October 31, 2003 by and between the Borrower and the Bank (the“Original Revolving Credit Loan”),which was amended and restated by that certain Amended & Restated Loanand Security Agreement dated as of April 21, 2004, the First Amendment to Amended &Restated Loan and Security Agreement dated as of July 1, 2004 and theSecond Amendment to Amended & Restated Loan and Security Agreementdated as of December 31, 2004 (collectively the “Loan Agreement”) theterms of which are incorporated by reference and made a part of this Amendmentas though fully set out herein; and

 

**WHEREAS,** the partieswish to amend the terms of the Loan Agreement, according to the terms of thisAgreement.

 

**AGREEMENTS**

 

**NOW THEREFORE**, inconsideration of the above recitals, the mutual promises and agreements of theparties et forth herein and other good and valuable consideration, the receiptand sufficiency of which is hereby acknowledged, the parties hereto agree asfollows:

 

Section 1.                                            Article I,Definitions, is hereby amended as follows:

 

The following definitions are added to the Loan Agreement:

 

“Business Day” shall mean any day other than a Saturday, Sundayor a legal holiday on which banks are authorized or required to be closed forthe conduct of commercial banking business in Chicago, Illinois.

 

“Interest Period” shall mean successive three month periods,beginning and ending as provided in this Agreement.

 

“LIBOR” shall mean a rate of interest equal to (a) the perannum rate of interest at which United States dollar deposits for a periodequal to the relevant Interest Period are offered in the London InterbankEurodollar market at 11:00 a.m. (London time) two Business Days prior tothe commencement of such Interest Period (or three Business Days prior to thecommencement of such Interest Period if banks in London, England were not openand

 

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dealing in offshore United States dollars on such second precedingBusiness Day), as displayed in the *Bloomberg FinancialMarkets* system (or other authoritative source selected by the Bankin its sole discretion), divided by (b) a number determined by subtractingfrom 1.00 the then stated maximum reserve percentage for determining reservesto be maintained by member banks of the Federal Reserve System for Eurocurrencyfunding or liabilities as defined in Regulation D (or any successor category ofliabilities under Regulation D), or as LIBOR is otherwise determined by theBank in its sole and absolute discretion. The Bank’s determination of LIBOR shall be conclusive, absent manifesterror.

 

“LIBOR Loan” or “LIBOR Loans” shall mean that portion,and collectively those portions, of the aggregate outstanding principal balanceof the Revolving Credit Loan that bears interest at the LIBOR Rate.

 

“LIBOR Rate” shall mean a rate of interest equal to LIBOR plus2.00% which LIBOR Rate shall remain fixed during such Interest Period.

 

“Prime Loan” or “Prime Loans” shall mean that portion,and collectively, those portions of the aggregate outstanding principal balanceof the Revolving Credit Loan that bears interest at the Prime Rate.

 

“Regulatory Change” shall mean the introduction of, or anychange in any applicable law, treaty, rule, regulation or guideline or in theinterpretation or administration thereof by any governmental authority or anycentral bank or other fiscal, monetary or other authority having jurisdictionover the Bank or its lending office.

 

Section 2. Sections2.01(A), (B) and (C) of Article II,The Loan, are hereby amended and restated in its entirety as follows:

 

2.01                           Subjectto the terms and conditions of this Agreement, the Bank will make a revolvingcredit facility (the “Revolving Credit Loan Commitment”) available to theBorrower, pursuant to which the Bank may from time to time make revolvingcredit advances (each, a “Revolving Credit Loan”) to the Borrower.  The aggregate amount of advances outstandingunder the Revolving Credit Loan Commitment shall at no time exceed the sum of$5,000,000.00 (the “Revolving Loan Commitment Amount”), minus the amount of alloutstanding Letters of Credit (including drawn but unreimbursed Letters ofCredit).  Amounts borrowed under this Section maybe repaid and reborrowed during the term of this Agreement.  The Revolving Credit Loan Commitment shallterminate on October 31, 2006 (the “Revolving Credit Loan Termination Date”).

 

(A)                              [IntentionallyDeleted].

 

(B)                                Theproceeds of Revolving Credit Loans shall be disbursed by deposit to theBorrower’s account maintained at the Bank or otherwise in accordance with thewritten instructions of the Borrower or the other provisions of thisAgreement.  Revolving Credit Loans shallbe used by the Borrower solely for working capital purposes.

 

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(C)                                Alloutstanding Revolving Credit Loans together with any accrued but unpaidinterest thereon shall be repaid in full on the Revolving Credit LoanTermination Date.  In addition,outstanding Revolving Credit Loans shall be repaid upon demand if and to theextent that they exceed the limitations imposed by Section 2.01above.  Borrower may repay and reborrow under theRevolving Credit Loan Commitment subject to the terms and conditions of thisAgreement.  Also, if the Borrower choosesnot to convert any Revolving Credit Loan which is a LIBOR Loan to a Prime Loanas provided in Section 2.08(B) and Section 2.08(C), then suchRevolving Credit Loan shall immediately be due and payable on the last BusinessDay of the then existing Interest Period or on such earlier date as required bylaw, all without further demand, presentment, protest or notice of any kind,all of which are hereby waived by the Borrower.

 

Section 3.                                            Section 2.02of Article II, The Loan, is hereby amended and restated in itsentirety as follows:

 

2.02 (A)      Exceptas provided in Section 2.02(B) below, the Revolving Credit Loansshall bear interest as follows: (i) the proceeds of the Revolving CreditLoans deposited into the Cash Account shall bear interest at the LIBOR Rate,and (ii) the remaining proceeds of the Revolving Credit Loans shall bearinterest at a floating per-annum rate equal to the Prime Rate.  Accrued and unpaid interest on the unpaidprincipal balance of all LIBOR Loans shall be payable on the last Business Dayof each Interest Period, commencing on the first such date to occur after thedate hereof, on the date of any principal repayment of a LIBOR Loan and on theRevolving Credit Loan Termination Date.  Accruedand unpaid interest on Prime Loans shall be paid monthly in arrears commencingon November 1, 2005 and continuing on the first day of each monththereafter.

 

(B)                                AnyObligation of the Borrower which is not paid when due, whether at statedmaturity, by acceleration or otherwise, shall bear interest payable on demandat an interest rate equal to the LIBOR Rate then in effect plus five percent(5%) and the Prime Rate then in effect plus five percent (5%) until paid.  In addition, after the occurrence of anyEvent of Default and delivery to the Borrower of the Bank’s notice to chargepost-default interest, all Obligations of the Borrower shall bear interest atthe highest rate provided for in the immediately preceding sentence.

 

Section 4.                                            Section 2.04of Article II, The Loan, is hereby amended and restated in itsentirety as follows:

 

2.04                           Allpayments, which are not prepayments, received from the Borrower for payment onthe Loans shall be applied by the Bank first to unpaid interest due and payableon the Revolving Credit Loans, second to any unpaid fees or expenses incurredby or owed to the Bank, third to any late charges or fees, and fourth to thereduction of the principal outstanding on the Loan; provided, however,while applying payments to unpaid interest the Bank shall have the solediscretion to decide whether to apply such payments first to unpaid interestdue and payable on the LIBOR Loans or to unpaid interest due and payable on thePrime Loans.

 

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Section 5.                                            Article II,The Loan, is hereby amended to add the following as Section 2.08 asfollows:

 

2.08(A)         LIBORLoan Prepayments.  Notwithstandinganything to the contrary contained herein, the principal balance of any LIBORLoan may not be prepaid in whole or in part at any time.  If, for any reason, a LIBOR Loan is paidprior to the last Business Day of any Interest Period, whether voluntary,involuntary, by reason of acceleration or otherwise, each such prepayment of aLIBOR Loan will be accompanied by the amount of accrued interest on the amountprepaid and any and all costs, expenses, penalties and charges incurred by theBank as a result of the early termination or breakage of a LIBOR Loan, plus theamount, if any, by which (i) the additional interest which would have beenpayable during the Interest Period on the LIBOR Loan prepaid had it not beenprepaid, exceeds (ii) the interest which would have been recoverable bythe Bank by placing the amount prepaid on deposit in the domestic certificateof deposit market, the eurodollar deposit market, or other appropriate moneymarket selected by the Bank, for a period starting on the date on which it wasprepaid and ending on the last day of the Interest Period for such LIBORLoan.  The amount of any such loss orexpense payable by the Borrower to the Bank under this section shall bedetermined in the Bank’s sole discretion based upon the assumption that theBank funded its loan commitment for LIBOR Loans in the London InterbankEurodollar market and using any reasonable attribution or averaging methodswhich the Bank deems appropriate and practical, provided, however, that theBank is not obligated to accept a deposit in the London Interbank Eurodollarmarket in order to charge interest on a LIBOR Loan at the LIBOR Rate.

 

(B)                                LIBORUnavailability.  If the Bankdetermines in good faith (which determination shall be conclusive, absentmanifest error) prior to the commencement of any Interest Period that (i) themaking or maintenance of any LIBOR Loan would violate any applicable law, rule,regulation or directive, whether or not having the force of law, (ii) UnitedStates dollar deposits in the principal amount, and for periods equal to theInterest Period for funding any LIBOR Loan are not available in the LondonInterbank Eurodollar market in the ordinary course of business, (iii) byreason of circumstances affecting the London Interbank Eurodollar market,adequate and fair means do not exist for ascertaining the LIBOR Rate to beapplicable to the relevant LIBOR Loan, or (iv) the LIBOR Rate does notaccurately reflect the cost to the Bank of a LIBOR Loan, the Bank shallpromptly notify the Borrower thereof and, so long as the foregoing conditionscontinue, none of the Loans may be advanced as a LIBOR Loan thereafter.  In addition, at the Borrower’s option, eachexisting LIBOR Loan shall be immediately (i) converted to a Prime Loan onthe last Business Day of the then existing Interest Period, or (ii) dueand payable on the last Business Day of the then existing Interest Period,without further demand, presentment, protest or notice of any kind, all ofwhich are hereby waived by the Borrower.

 

(C)                                RegulatoryChange.  In addition, if, after thedate hereof, a Regulatory Change shall, in the reasonable determination of theBank, make it unlawful for the Bank to make or maintain the LIBOR Loans, thenthe Bank shall promptly notify the Borrower and none of the Loans may beadvanced as a LIBOR Loan thereafter.  Inaddition, at the Borrower’s option, each existing LIBOR Loan shall beimmediately (i) converted to a Prime Loan on the last Business Day of thethen existing Interest Period or on such earlier date as required by law, or (ii) dueand payable on the last Business Day of the then existing Interest Period or on

 

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such earlier date as required by law, all without further demand,presentment, protest or notice of any kind, all of which are hereby waived bythe Borrower.

 

(D)                               LIBORIndemnity.  If any Regulatory Change,or compliance by the Bank or any Person controlling the Bank with any requestor directive of any governmental authority, central bank or comparable agency(whether or not having the force of law) shall (a) impose, modify or deemapplicable any assessment, reserve, special deposit or similar requirementagainst assets held by, or deposits in or for the account of or loans by, orany other acquisition of funds or disbursements by, the Bank; (b) subjectthe Bank or any LIBOR Loan to any tax, duty, charge, stamp tax or fee or changethe basis of taxation of payments to the Bank of principal or interest due fromthe Borrower to the Bank hereunder (other than a change in the taxation of theoverall net income of the Bank); or (c) impose on the Bank any othercondition regarding such LIBOR Loan or the Bank’s funding thereof, and the Bankshall determine (which determination shall be conclusive, absent manifesterror) that the result of the foregoing is to increase the cost to, or toimpose a cost on, the Bank or such controlling Person of making or maintainingsuch LIBOR Loan or to reduce the amount of principal or interest received bythe Bank hereunder, then the Borrower shall pay to the Bank or such controllingPerson, on demand, such additional amounts as the Bank shall, from time totime, determine are sufficient to compensate and indemnify the Bank for suchincreased cost or reduced amount.

 

(E)                                 InterestPeriods.  The first Interest Periodfor the LIBOR Loan shall commence on October 31, 2005.  The final Interest Period must be such thatits expiration occurs on or before the Revolving Credit Loan Maturity Date.

 

(F)                                 Renewal.  Each LIBOR Loan shall automatically renew forthe Interest Period, at the then current LIBOR Rate unless the Borrower,pursuant to a subsequent notice received by the Bank, shall convert all or aportion of such LIBOR Loan to a Prime Loan. Each Interest Period occurring after the initial Interest Period withrespect to any LIBOR Loan shall commence on the same day of each applicablemonth as the first day of the initial Interest Period.  Whenever the last day of any Interest Periodwith respect to any LIBOR Loan would otherwise occur on a day other than a BusinessDay, the last day of such Interest Period shall be extended to occur on thenext succeeding Business Day.  Wheneveran Interest Period with respect to any LIBOR Loan would otherwise end on a dayof a month for which there is no numerically corresponding day in the calendarmonth, such Interest Period shall end on the last day of such calendar month,unless such day is not a Business Day, in which event such Interest Periodshall be extended to end on the next Business Day.  Upon receipt by the Bank of such subsequentnotice, the Borrower may, subject to the terms and conditions of thisAgreement, elect, as of the last day of the applicable Interest Period, tocontinue any LIBOR Loan having an Interest Period expiring on such day for anew Interest Period, or to convert any such LIBOR Loan to a Prime Loan.  Such notice shall, in the case of aconversion to a Prime Loan, be given before 11:00 a.m., Chicago time, onthe proposed date of such conversion, specifying: (i) the proposed date ofconversion; (ii) the aggregate amount of Loans to be converted; and (iii) thetype of Loans resulting from the proposed conversion.   The Borrower may not elect a LIBOR Rate, andan Interest Period for a LIBOR Loan shall not automatically renew, with respectto any principal amount which is scheduled to be repaid before the last day ofthe applicable Interest Period, and any such amounts shall bear interest at thePrime Rate, until repaid.

 

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Section 6.                                            The PledgeAgreement delivered pursuant to Section 3.01(E) of the Loan Agreementto secure the Cash Account is hereby cancelled and terminated.

 

Section 7.                                            Article VIII,Financial Covenants, is hereby amended by adding a subsection (C) asfollows:

 

(C)                                CurrentAssets.  As of the end of each of itsfiscal quarters the Borrower shall maintain current assets of at least FiveMillion and 00/100 Dollars ($5,000,000.00).

 

Section 8.                                            Section 9.03of Article IX, Event of Default, is hereby amended and restated inits entirety as follows:

 

9.03                           Inexercising its right to sell, lease or otherwise dispose of the Collateral, theBank may sell, lease or otherwise dispose of all or any Collateral in its thencondition, or after any further manufacturing or processing thereof, at publicor private sale or sales, with such notice as may be required by law, in lotsor in bulk, all as the Bank, in its sole discretion, may deem advisable; suchsales may be adjourned from time to time with or without notice.  The Bank shall have the right to conduct suchsales on the Borrower’s premises or elsewhere and shall have the right to usethe Borrower’s premises without charge for such sales for such time or times asthe Bank may see fit.  The Bank is herebygranted a license or other right to use, without charge, the Borrower’s labels,patents, copyrights, rights of use of any name, trade secrets, tradenames,trademarks, service marks and advertising matter, or any property of a similarnature, as it pertains to the Collateral, in advertising for sale and sellingany Collateral and the Borrower’s rights under all licenses and all franchiseagreements shall inure to the Bank’s benefit. The Bank shall have the right to sell, lease or otherwise dispose of theCollateral, or any part thereof, for cash, credit or any combination thereof,and the Bank may purchase all or any part of the Collateral at public or, ifpermitted by law, private sale and, in lieu of actual payment of such purchaseprice, may set off the amount of such price against the Borrower’s Obligations.  The proceeds realized from the sale of anyCollateral shall be applied first to the costs, expenses and attorneys’ feesand expenses incurred by the Bank for collection and for acquisition,completion, protection, removal, storage, sale and delivery of the Collateral;second to interest due upon any of the Borrower’s Obligations; and third to theprincipal of the Borrower’s Obligations. If any deficiency shall arise, the Borrower shall remain liable to theBank therefor; provided, however, while applying the proceeds from thesale of Collateral to interest due upon the Borrower’s obligations the Bankshall have the sole discretion to decide whether to apply such proceeds firstto interest due and payable on the LIBOR Loans or to interest due and payable onthe Prime Loans.

 

Section 9.                                            Borrowerrestates and reaffirms each and every representation, warranty, covenant andagreement contained in the Loan Agreement, as amended, as fully and with thesame effect as if such representations, warranties, covenants, and agreementswere set forth in this Amendment.

 

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Section 10.                                      GeneralProvisions:

 

a.                                       ThisAmendment shall be incorporated into and made a part of the Loan Agreement, asamended from time to time, and all other related loan documents executed byBorrower.

 

b.                                      Allcapitalized terms not defined in this Amendment shall have the meaningsascribed to them in the Loan Agreement, as amended from time to time.

 

c.                                       Borrowerhereby agrees to execute and deliver, or cause to be executed and delivered, tothe Bank: (i) the Amended and Restated Revolving Credit Note, and (ii) such additional documentation as the Bank shall require in order to evidence oreffectuate the transactions contemplated hereby or in order to updateinformation and undertakings heretofore given to the Bank by or on behalf ofBorrower.

 

d.                                      ThisAmendment shall be governed by, and construed in accordance with, the internallaws of the State of Illinois, without giving effect to any choice of lawprovisions.

 

e.                                       ThisAmendment shall inure to the benefit of the Bank’s successors and assigns, andshall be binding upon the successors and assigns of Borrower.

**[Signature Page to Follow]**

 

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IN WITNESS WHEREOF, the parties have hereunto caused this Amendment tobe executed by their respective officers thereunto duly authorized, as of thedate first above written.

 

 
|   |        | **BORROWER:**                    |
|--------|-------------|----------------------------------|
|   |        |                             |
|   |        | **EBIX, INC.,**                  |
|   |        | **A DELAWARE CORPORATION,**      |
|   |        | **F/K/A EBIX.COM, INC.**         |
|   |        |
|   |        |
|   | By:         |   /s/  Richard J. Baum |
|   |        |
|   | Print Name: |   Richard  J. Baum     |
|   |        |
|   | Title:      |   CFO                  |
|   |        |
|   |        |
|   |        | **BANK:**                        |
|   |        |                             |
|   |        | **LaSALLE BANK, N.A.**           |
|   |        |
|   |        |
|   | By:         |                             |
|   |        |
|   | Print Name: |                             |
|   |        |
|   | Title:      |                             |
|        |             |                                  |  |  |  |

 

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