EXHIBIT 10.1
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made and entered into as of this 15th day of June, 2006, by and
among GOLDLEAF FINANCIAL SOLUTIONS, INC. (F/K/A PRIVATE BUSINESS, INC.), a
Tennessee corporation, as borrower (the "Borrower"), BANK OF AMERICA, N.A., a
national banking association, as a lender ("Bank of America"), THE PEOPLES BANK,
as a lender ("Peoples Bank") and THE BANKERS BANK, as a lender ("Bankers Bank")
(collectively, with Bank of America and Peoples Bank, the "Lenders").
W I T N E S S E T H:
WHEREAS, the Borrower and certain Lenders are parties to that certain
Amended and Restated Credit Agreement, dated as of January 23, 2006, as amended
by that certain First Amendment thereto, dated as of February 17, 2006, that
certain Second Amendment thereto, dated as of April 15, 2006, and that certain
Third Amendment thereto, dated as of May 3, 2006 (as so amended, the "Credit
Agreement"), pursuant to which certain Lenders extended certain financial
accommodations to the Borrower; and
WHEREAS, the Borrower has requested that the Lenders, and the Lenders
have agreed to, subject to the terms hereof, amend certain provisions of the
Credit Agreement as more fully set forth herein; and
NOW, THEREFORE, in consideration of the premises, the terms and
conditions contained herein, and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not expressly
defined herein shall have the same respective meanings given to such terms in
the Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 1.1 of the Credit Agreement is hereby amended by
deleting the definitions of "Collateral Documents," "Lender," "Loans," "Notes,"
"Revolving Credit Loan Note," "Term A Loan Note," "Term B Loan Maturity Date,"
"Term D Loan" and "Term Loans" in their entirety and replacing them with the
following definitions:
"'Collateral Documents' means all agreements,
instruments and documents now or hereafter executed and delivered in
connection with this Agreement pursuant to which Liens are granted or
purported to be granted to the Lenders in Collateral securing all or
part of the Obligations each in form and substance satisfactory to Bank
of America, for itself and for the benefit of the other Lenders,
including, without limitation, the Borrower Security Agreement, the
Subsidiary Security Agreement, the Borrower Stock Pledge Agreement and
the Subsidiary Stock Pledge Agreement."
"'Lender' or 'Lenders' means, collectively, Bank of
America, Peoples Bank and Bankers Bank, and each such Lender's
successors and assigns; provided, however, that with respect to the
Term B Loan, 'Lender' shall mean Bank of America."
"'Loans' means, collectively, the Revolving Credit
Loan, the Term A Loan, and the Term B Loan, and "Loan" means any one of
the foregoing."
"'Notes' means the Revolving Credit Loan Notes, the
Term A Loan Notes, and the Term B Loan Note."
"'Revolving Credit Loan Note' means each of those
certain revolving promissory notes in the aggregate principal amount
not to exceed Nine Million Two Hundred Fifty Thousand Dollars
($9,250,000), dated as of the Fourth Amendment Date, issued by Borrower
to the Lenders, and substantially in the form of Exhibit F attached
hereto."
"'Term A Loan Note' means each of those certain
promissory notes in the aggregate principal amount not to exceed Nine
Million Seven Hundred Fifty Thousand Dollars ($9,750,000), dated as of
the Fourth Amendment Date, issued by Borrower to the Lenders, and
substantially in the form of Exhibit J attached hereto.
"'Term B Loan Maturity Date' means September 30,
2006, or such other date as payment of the remaining outstanding
principal amount of the Term B Loan or of all remaining outstanding
obligations shall be due (whether by acceleration or otherwise.)"
"'Term C Loan' means the term loan made on the Second
Amendment Date from First Horizon Bank to Borrower in the amount of One
Million Dollars ($1,000,000)."
"'Term D Loan' means the term loan made on the Second
Amendment Date from Peoples Bank to Borrower in the amount of Seven
Hundred and Fifty Thousand Dollars ($750,000), which as of the Fourth
Amendment Date shall be deemed a Term A Loan."
"'Term Loans' means, collectively, the Term A Loan
and the Term B Loan."
(b) Section 1.1 of the Credit Agreement is hereby further
amended by inserting the following new defined terms in appropriate alphabetical
order:
"'Bankers Bank' means The Bankers Bank."
"'Fourth Amendment Date' means June 15, 2006."
-2-
(c) Section 1.1 of the Credit Agreement is hereby amended by deleting the
following defined terms in their entirety: "First Horizon," "Subsidiary Sale,"
"Term C Loan Maturity Date," "Term C Loan Note" and "Term D Loan Maturity Date."
(d) Section 2.1 of the Credit Agreement is hereby amended by deleting such
section in its entirety and replacing it with the following:
"2.1 REVOLVING CREDIT LOAN; REVOLVING COMMITMENT. From the Closing Date and
prior to the Revolving Credit Maturity Date, each Lender having a Revolving
Commitment agrees severally, in accordance with their respective commitment
ratios and not jointly, to provide a Revolving Credit Loan to Borrower, the
amount of which shall not exceed the aggregate of, at any one time
outstanding, Nine Million Two Hundred Fifty Thousand Dollars ($9,250,000),
as reduced from time to time. Within the limits of the Revolving
Commitment, and subject to other terms and conditions hereof or as may be
imposed by the Autoborrow Agreement, Borrower may borrow under this Section
2.1, prepay under Section 2.5 and reborrow under this Section 2.1.
(a) REVOLVING CREDIT. This is a revolving line of credit. Borrower may
repay principal amounts and reborrow them.
(b) MAXIMUM BORROWINGS. Borrower agrees not to permit the principal
balance outstanding to exceed the Revolving Commitment. If Borrower
exceeds the Revolving Commitment, Borrower will immediately pay the
excess to the Lenders with interest to accrue at the Default Rate.
(c) L/C OBLIGATIONS. After giving effect to any Revolving Credit
Borrowings, the Outstanding Amount of the Revolving Credit Loan plus
the outstanding amount of all L/C Obligations shall not exceed the
Revolving Commitment.
(d) INTEREST PAYMENTS. Borrower will pay interest beginning on March
31, 2006, and on the last day of each June, September, December and
March thereafter (each an 'Interest Payment Date'), and ending on the
Maturity Date, at which time the Outstanding Amount of the Revolving
Credit Loan, and the Total Outstandings, including all accrued and
unpaid interest, shall be due and payable in full.
(e) INTEREST RATE. The interest rate applicable to the Revolving
Credit Loan will be the rate per annum equal to, as elected by
Borrower in accordance with Section 2.4 hereof, (i) LIBOR plus three
percent (3.00%) or (ii) Lender's Base Rate.
(f) INCREASE AND REDUCTION OF REVOLVING COMMITMENT. To the extent
there has been a repayment, in full or in part, of the Term A Loan
and/or Term B Loan pursuant to Section 2.12(c) hereof, the Revolving
Commitment shall increase dollar for dollar by the amount of the
-3-
repayments applied to the Term A Loan and/or Term B Loan,
respectively, from such net cash proceeds. With respect to the
increases to the Revolving Commitment pursuant to this Section
2.12(f), each Lender's portion of the Revolving Commitment shall
increase in proportion to such Lender's pro rata share of the Term
Loan being repaid. For the avoidance of doubt, upon repayment in full
of both the Term A Loan and Term B Loan, Bank of America's portion of
the Revolving Commitment will be Seventeen Million Dollars
($17,000,000), Peoples Bank's portion of the Revolving Commitment will
be Four Million Dollars ($4,000,000) and Bankers Bank's portion will
be Four Million Dollars ($4,000,000)."
(e) Section 2.2(a)(ii)(B) of the Credit Agreement is hereby amended by
deleting such subsection in its
entirety.
(f) Section 2.2 of the Credit Agreement is hereby amended by deleting
subsections (c) and (d) in their entirety.
(g) Section 2.11 of the Credit Agreement is hereby amended by deleting such
section in its entirety and replacing it with the following:
"Section 2.11 Collateral. Borrower's Obligations to the Lenders under
this Agreement will be secured by the Collateral which Borrower or any of
the Subsidiaries now or hereafter owns. The Collateral is defined in the
Borrower Security Agreement, the Subsidiary Security Agreement, the
Borrower's Stock Pledge Agreement and the Subsidiary Stock Pledge
Agreement."
(h) Section 2.12(a) of the Credit Agreement is hereby amended by replacing
the semi-colon with a period and by deleting the proviso set for therein in its
entirety.
(i) Section 2.12(c) of the Credit Agreement is hereby amended by deleting
such subsection in its entirety and replacing it with the following:
"(c) Issuance of Equity Interests. On the first Business Day following
the receipt by any Loan Party of net cash proceeds from the issuance of
equity interests of Borrower, the Loans shall be repaid by an amount equal
to one hundred percent (100%) of such net cash proceeds, together with any
accrued interest on the portion of the Loans repaid; provided, however,
that, with respect to the issuance of equity interests, no such repayment
shall be required after the repayment in full of the Term A Loan and Term B
Loan, (i) if Borrower notifies Lender that such net cash proceeds shall be
used contemporaneously to pay all or a portion of the purchase price of an
Acquisition permitted pursuant to Section 7.2(a), (g) or (h) hereof, (ii)
with respect to proceeds from the exercise of warrants outstanding as of
the date hereof, preferred stock and warrants issued to Lightyear pursuant
to the terms of the Guarantee Commitment Letter between Lightyear and
Borrower dated as of the date hereof (or the exercise thereof), or options
currently outstanding or issued pursuant to employee benefit plans or (iii)
with respect to equity issued as payment for services or property."
-4-
(j) The final two sentences of Section 2.12 of the Credit Agreement are
hereby amended by deleting such sentences in their entirety and replacing them
with the following:
"All repayments under this Section 2.12(a) shall be applied first, to
the Term B Loan, until the same has been paid in full; second, pro rata to
the Term A Loan, until the same has been paid in full; and third, to the
Revolving Credit Loan, which shall result in a concurrent reduction of the
Revolving Commitment. All repayments under this Section 2.12(b) and (c)
shall be applied first, to the Term B Loan, until the same has been paid in
full; second, pro rata to the Term A Loan, until the same has been paid in
full; and third, to the Revolving Credit Loan."
(k) The Credit Agreement is hereby amended by deleting Section 5.24 in its
entirety.
(l) Section 6.12(a) is hereby amended by deleting the first sentence of
such subsection in its entirety and replacing it with the following:
"(a) FUNDED DEBT TO EBITDA RATIO. Maintain on a consolidated basis a
ratio of Funded Debt (excluding capital lease obligations effective from
the Closing Date through October 31, 2006) to EBITDA not exceeding
2.00:1.00."
(m) Section 7.3(e) is hereby amended by deleting such subsection in its
entirety and replacing it with the following:
"(e) at any time prior to October 31, 2006, capital lease obligations
assumed in connection with Investments or Acquisitions permitted pursuant
to Section 7.2 hereof, in an aggregate principal amount not to exceed One
Million Five Hundred Thousand Dollars ($1,500,000);"
(n) Section 7.5(e) of the Credit Agreement is hereby amended by deleting
subsection (e) in its entirety and replacing it with the following:
"(e) Reserved; and"
3. AMENDMENTS TO COLLATERAL DOCUMENTS. Each of the Borrower Security
Agreement, the Borrower Stock Pledge Agreement, the Subsidiary Security
Agreement and the Subsidiary Stock Pledge Agreement are hereby amended by
deleting each reference to "Bank of America" and replacing it with "Bank of
America, for the benefit of the Lenders."
4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to and in favor of the Lender as follows:
(a) each representation and warranty set forth in Article 5 of the
Credit Agreement, as amended hereby, is hereby restated and affirmed as true and
correct in all material respects as of the date hereof, except to the extent (i)
previously fulfilled in accordance with the
-5-
terms of the Credit Agreement, as amended hereby, (ii) the Borrower has provided
the Lender updates to information provided to the Lender in accordance with the
terms of such representations and warranties, or (iii) relating specifically to
the Closing Date or otherwise inapplicable;
(b) the Borrower and each Guarantor has the corporate power and
authority (i) to enter into this Amendment, and (ii) to do all acts and things
as are required or contemplated hereunder to be done, observed and performed by
it;
(c) this Amendment has been duly authorized, validly executed and
delivered by one or more Responsible Officers of the Borrower and each
Guarantor, and constitutes the legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with its terms,
subject, as to enforcement of remedies, to the following qualifications: (i) an
order of specific performance and an injunction are discretionary remedies and,
in particular, may not be available where damages are considered an adequate
remedy at law, and (ii) enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other similar laws affecting
enforcement of creditors' rights generally (insofar as any such law relates to
the bankruptcy, insolvency or similar event of the Borrower);
(d) the execution and delivery of this Amendment and performance by the
Borrower under the Credit Agreement, as amended hereby, does not and will not
require the consent or approval of any regulatory authority or governmental
authority or agency having jurisdiction over the Borrower which has not already
been obtained, nor be in contravention of or in conflict with the Articles of
Incorporation or By-Laws of the Borrower, or any provision of any statute,
judgment, order, indenture, instrument, agreement, or undertaking, to which the
Borrower is party or by which the Borrower's assets or properties are bound; and
(e) no Default exists both before and after giving effect to this
Amendment, and there has been no Material Adverse Effect both before and after
giving effect to this Amendment.
5. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. The effectiveness of
this Amendment is subject to the following conditions precedent:
(a) Receipt by Lenders of each of the following items, in each case in
form and substance satisfactory to the Lenders:
(i) this Amendment, duly executed and delivered by Borrower, the
Guarantors and the Lenders;
(ii) a Revolving Credit Loan Note, duly executed and delivered by
Borrower in favor of Bank of America, in the amount of $5,355,263.16;
(iii) a Revolving Credit Loan Note, duly executed and delivered by
Borrower in favor of Peoples Bank, in the amount of $1,947,368.42;
(iv) a Revolving Credit Loan Note, duly executed and delivered in
favor of Bankers Bank, in the amount of $1,947,368.42;
-6-
(v) a Term A Loan Note, duly executed and delivered by Borrower in
favor of Bank of America, in the amount of $5,644,736.84;
(vi) a Term A Loan Note, duly executed and delivered by Borrower in
favor of Peoples Bank, in the amount of $2,052,631.58;
(vii) a Term A Loan Note, duly executed and delivered by Borrower in
favor of Bankers Bank, in the amount of $2,052,631.58;
(viii) an assignment and assumption agreement from Bank of America to
Peoples Bank with respect to a portion of Bank of America's interest in the
Term A Loan, duly executed and delivered by each party thereto;
(ix) an assignment and assumption agreement from Bank of America to
Bankers Bank with respect to a portion of Bank of America's interest in the
Term A Loan, duly executed and delivered by each party thereto; and
(x) such other documents, certificates, instruments and information
as the Lenders may reasonably request.
(b) The Lenders shall have received all fees from the Borrower required
to be paid in connection with this Amendment on the date hereof, pursuant to (i)
that certain Fee Letter, dated as of the date hereof, between Borrower and Bank
of America, (ii) that certain Fee Letter, dated as of the date hereof, between
Borrower and Peoples Bank and (iii) that certain Fee Letter, dated as of the
date hereto, between Borrower and Bankers Bank, and shall have been reimbursed
for all reasonable fees, costs and expenses of closing, including all reasonable
legal fees of Lenders' counsel, presented as of the date of this Amendment.
6. GUARANTOR ACKNOWLEDGMENT.
(a) Each of the Guarantors hereby acknowledges that it has reviewed the
terms and provisions of the Credit Agreement and this Amendment. Each of the
Guarantors hereby confirms that the Subsidiary Guaranty or Lightyear Guaranty,
as applicable, to which it is a party or otherwise bound will continue to
guarantee, as the case may be, to the fullest extent possible in accordance with
such Guarantee the payment and performance of all "Guarantied Obligations" under
each of the Guarantees, as the case may be (in each case as such terms are
defined in the applicable Guarantee), including without limitation the payment
and performance of all such "Obligations" under each of the Guarantees, as the
case may be, in respect of the Obligations of the Borrower now or hereafter
existing under or in respect of the Credit Agreement and the Notes defined
therein.
(b) Each of the Guarantors acknowledges and agrees that any of the
Guarantees to which it is a party or otherwise bound shall continue in full
force and effect and that all of its obligations thereunder shall be valid and
enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment. Each of the Guarantors represents and warrants
that all representations and warranties contained in the Credit Agreement, this
Amendment and the Guarantee to which it is a party or otherwise bound are true,
correct and complete in all material respects on and as of the date hereof to
the same extent as though made
-7-
on and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
(c) Each of the Guarantors acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment,
such Guarantor is not required by the terms of the Credit Agreement or any other
Loan Document to consent to the amendments of the Credit Agreement effected
pursuant to this Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Loan Document shall be deemed to require the consent of
such Guarantor to any future amendments to the Credit Agreement.
7. LENDERS' CONSENT. The Borrower has requested to repay the Term C Loan in
full using proceeds from the Revolving Credit Loan on the Fourth Amendment Date
and the Lenders hereby agree and consent to such repayment, notwithstanding
anything to the contrary in the Credit Agreement. No consent by the Lenders
under the Credit Agreement or any other Loan Document is granted or intended
except as expressly set forth herein, and the Lenders expressly reserve the
right to require strict compliance in all other respects. Except as set forth
herein, the consent agreed to herein shall not constitute a modification of the
Credit Agreement or any of the other Loan Documents, or a course of dealing with
the Lenders at variance with the Credit Agreement or any of the other Loan
Documents, such as to require further notice by the Lenders to require strict
compliance with the terms of the Credit Agreement and the other Loan Documents
in the future.
8. EFFECT OF AMENDMENT; NO NOVATION. Except as expressly set forth herein,
the Credit Agreement shall remain unchanged and in full force and effect and
shall constitute the legal, valid, binding and enforceable obligation of the
Borrower to the Lender, and Borrower hereby restates, ratifies and reaffirms
each and every term and condition set forth in the Credit Agreement, as amended
hereby. The terms of this Amendment are not intended to and do not serve as a
novation as to the Credit Agreement or any Note or the indebtedness evidenced
thereby. The parties hereto expressly do not intend to extinguish any debt or
security interest created pursuant to the Credit Agreement or any document
executed in connection therewith. Instead it is the express intention to affirm
the Credit Agreement and the security created thereby.
9. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which, when so executed and delivered, shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
instrument.
10. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and inure
to the benefit of the successors and permitted assigns of the parties hereto.
11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
[Remainder of Page Intentionally Left Blank]
-8-
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
under seal as of the day and year first above written.
GOLDLEAF FINANCIAL SOLUTIONS, INC.,
as Borrower
By: /s/ J. Xxxxx Xxxxxxxxx
--------------------------------------
Name: J. Xxxxx Xxxxxxxxx
Title: CFO
BANK OF AMERICA, N.A., as Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
THE PEOPLES BANK, as Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Banking Officer
THE BANKERS BANK, as Lender
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE 1 of 4
ACKNOWLEDGED AND CONSENTED
TO BY THE FOLLOWING GUARANTORS:
PRIVATE BUSINESS INSURANCE, LLC
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Counsel
FORSEON CORPORATION
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Counsel
TOWNE SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Counsel
KVI CAPITAL, LLC
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Counsel
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE 2 of 4
CAPTIVA FINANCIAL SOLUTIONS, LLC
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Counsel
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE 3 of 4
ACKNOWLEDGED AND CONSENTED
TO BY THE FOLLOWING GUARANTOR:
THE LIGHTYEAR FUND, L.P.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE 4 of 4
