EXHIBIT 10.12.4
AMENDMENT NO. 1 TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment No. 1 to Amended and Restated Credit Agreement (this
"Amendment"), is dated as of March 29, 2002, by and among NETZEE, INC., a
Georgia corporation, as the Borrower, XXXX X. XXXXXXX COMPANY, as a Lender
("Xxxxxxx"), and INTERCEPT, INC., as a Lender ("InterCept") and as the Agent.
Recitals
The Borrower, the Lenders and Agent are parties to that certain Amended
and Restated Credit Agreement dated as of February 2, 2001 (the "Credit
Agreement"; capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Credit Agreement).
The parties have agreed to make certain modifications to the terms of
the Credit Agreement, as more particularly set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. General. Upon and after the date hereof, all references to the
Credit Agreement in that document or in any other Loan Document shall mean the
Credit Agreement as amended hereby. Except as expressly provided herein, the
execution and delivery of this Amendment does not and will not amend, modify or
supplement any provision of, or constitute a consent to or a waiver of any
noncompliance with the provisions of, the Credit Agreement, and, except as
specifically provided in this Amendment, the Credit Agreement shall remain in
full force and effect and is hereby ratified and confirmed.
2. Amendments. The Credit Agreement is hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby
amended by adding the following new definitions in alphabetical order:
"Aggregate Percentage" means, as to each Lender, the ratio,
expressed as a percentage, of (a) the amount of such Lender's
Commitment to (b) the Aggregate Commitments.
"InterCept Subfacility" means a $1,000,000 subfacility under
the Revolving Credit Facility extended solely by InterCept. Revolving
Credit Advances shall be deemed made under the InterCept Subfacility
only to the extent that the total principal amount of all Revolving
Credit Advances outstanding exceeds an amount equal to (i) the
Aggregate Commitment minus (ii) $1,000,000. Each payment by the
Borrower with respect to any Revolving Credit Advance (other than
voluntary or mandatory payments which permanently reduce the
Commitments pursuant to Section 2.03 or 2.04 hereof) shall be applied
first to Revolving Credit Advances outstanding under the InterCept
Subfacility and then to Revolving Credit Advances outstanding under the
Shared Subfacility. Each voluntary or mandatory reduction of the
Commitments pursuant to Section 2.03 or 2.04 hereof shall be applied
first to the Commitments under the Shared Subfacility and then to the
InterCept Subfacility Commitment.
"InterCept Subfacility Commitment" means the portion of
InterCept's Commitment comprising InterCept's obligation to make
Revolving Credit Advances under the InterCept Subfacility.
"InterCept Subfacility Percentage" means, with respect to
InterCept, 100%, and with respect to any other Lender, 0%.
"Revolving Credit Facility" means the revolving credit
facility established by the Lenders in favor of the Borrower pursuant
to this Agreement.
"Shared Subfacility" means the portion of the Revolving Credit
Facility other than the InterCept Subfacility.
"Shared Subfacility Percentage" means, as to each Lender, the
ratio expressed as a percentage, of (a) the amount of such Lender's
Commitment (and, if such Lender is InterCept, less an amount equal to
the InterCept Subfacility Commitment) to (b) an amount equal to the
Aggregate Commitments less an amount equal to the InterCept Subfacility
Commitment.
(b) Section 1.01 of the Credit Agreement is hereby
amended by amending the following definitions in their entirety and
substituting the following therefor:
"Credit Percentage" means, as to each Lender, (a) to the
extent that there is Borrowing availability under the Shared
Subfacility, for purposes of determining (i) such Lender's obligations
to make Revolving Credit Advances and (ii) the application of
repayments by the Borrower of Revolving Credit Advances (other than
voluntary or mandatory payments which permanently reduce the
Commitments pursuant to Section 2.03 or 2.04 hereof), such Lender's
Shared Subfacility Percentage; (b) to the extent that the Shared
Subfacility is fully funded, for purposes of determining (i) such
Lender's obligations to make Revolving Credit Advances and (ii) the
application of repayments by the Borrower of Revolving Credit Advances
(other than voluntary or mandatory payments which permanently reduce
the Commitments pursuant to Section 2.03 or 2.04 hereof), such Lender's
InterCept Subfacility Percentage; (c) at all times that any Commitment
remains effective under the Shared Subfacility, for purposes of
apportioning any voluntary or mandatory reduction of the Commitments
pursuant to Section 2.03 or 2.04 hereof, such Lender's Shared
Subfacility Percentage; and (d) for all other purposes, unless the
context clearly indicates otherwise, such Lender's Aggregate
Percentage.
"Termination Date" means April 10, 2003.
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3. Acknowledgements. The Borrower and the Lenders acknowledge and
agree that, after giving effect to the amendments set forth in Section 2 above,
the amount of each Lender's Commitment, Aggregate Percentage, and Shared
Subfacility Percentage is as follows:
SHARED SUBFACILITY
LENDER COMMITMENT AGGREGATE PERCENTAGE PERCENTAGE
------ ---------- -------------------- ------------------
InterCept $14,040,700 78.00% 76.71%
Xxxxxxx $ 3,959,300 22.00% 23.29%
4. Representations and Warranties. The Borrower hereby represents
and warrants to Lenders and the Agent as follows:
(a) Authorization of Amendment, Etc. Borrower has the
right and power, and has taken all necessary action to authorize it, to
execute, deliver and perform this Amendment in accordance with its
terms. This Amendment has been duly executed and delivered by Borrower
and is a legal, valid and binding obligation of Borrower, enforceable
against Borrower in accordance with its terms.
(b) Representations in Credit Agreement. All of the
representations set forth in the Credit Agreement, as modified hereby,
are accurate in all material respects as of the date hereof.
5. Loan Documents. Borrower and Lender agree and acknowledge that
this Amendment shall constitute a "Loan Document" under the Credit Agreement.
6. Fees. In consideration of InterCept's agreement to extend the
"InterCept Subfacility" referred to in Section 2 of this Amendment, the Borrower
will pay to InterCept a nonrefundable commitment fee of $100,000, such fee to be
payable immediately following the execution and delivery of this Amendment. In
consideration of Harland's agreement to extend the "Shared Subfacility" referred
to in Section 2 of this Amendment, the Borrower will pay to Xxxxxxx a
nonrefundable commitment fee of $20,000, such fee to be payable immediately
following the execution and delivery of this Amendment.
7. No Implied Consent or Waiver. Except as expressly set forth
herein, the execution and delivery of this Amendment does not and will not
constitute a consent to or a waiver of any noncompliance with the provisions of
the Credit Agreement.
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8. Counterparts. This Amendment may be executed by each party to
this Amendment upon a separate copy, and in such case one counterpart of this
Amendment shall consist of enough of such copies to reflect the signature of all
of the parties to this Amendment. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Amendment or its terms to produce or account
for more than one of such counterparts.
9. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of Georgia.
10. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
[Signatures commence on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers hereunder duly authorized as of the day
and year first written above.
NETZEE, INC., as the Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: SEVP and CFO
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INTERCEPT, INC., as a Lender and as the
Agent
By: /s/ Xxxxx X. Xxxxxxxxx
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Title: SVP CFO
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XXXX X. XXXXXXX COMPANY, as a Lender
By: /s/ Xxxx Xxxxxx
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Title: VP/Treasurer
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