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EXHIBIT 10.25.1
AMENDMENT NO. 1 TO
CREDIT AGREEMENT
This Amendment No. 1 to Credit Agreement (this "Amendment"), is dated
as of September 29, 2000 and effective as of the Effective Date (as defined
below), by and between NETZEE, INC., a Georgia corporation ("Borrower") and THE
INTERCEPT GROUP, INC. ("Lender").
Recitals
Borrower and Lender are parties to that Credit Agreement dated as of
May 31, 2000 (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. Effective as of the Effective Date (as defined
below), the Credit Agreement is amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby
amended by adding the following new defined term:
"Xxxxxxx Purchase Agreement" means that certain
Asset Purchase Agreement dated as of September 29, 2000,
among the Borrower, Xxxx X. Xxxxxxx Company, Concentrex
Incorporated, Meca Software, L.L.C. and Moneyscape Holdings,
Inc.
(b) Section 2.03(b)(iii) of the Credit Agreement is
hereby amended by deleting such section in its entirety and
substituting the following therefor:
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"(iii) The Borrower shall prepay any outstanding
principal amount of the Revolving Credit Advances, and the
Revolving Commitment shall be correspondingly immediately,
automatically and permanently reduced, in an amount equal to
100% of the Net Proceeds of any issuance of capital stock or
other equity interests of the Borrower or any Subsidiary
other than (a) an issuance of capital stock or other equity
interests of the Borrower to the Borrower or a Subsidiary (b)
an issuance of capital stock or other equity interests of the
Borrower made in connection with an acquisition that is
permitted under Section 8.04 or approved in writing by the
Lender, (c) issuance by the Borrower of Options exercisable
for Common Stock pursuant to that certain Netzee, Inc. 1999
Stock Option and Incentive Plan, (d) the issuance by the
Borrower of its Series B Preferred Stock, and (e) the
issuance by the Borrower of common stock pursuant to the
Xxxxxxx Purchase Agreement at the Second Closing (as defined
in the Xxxxxxx Purchase Agreement). The Borrower shall make
the required mandatory prepayment hereunder on the date not
later than three calendar days after the receipt by the
Borrower or such Subsidiary of the Net Proceeds of such
issuance of capital stock."
(c) Section 8.01 of the Credit Agreement is hereby
amended by deleting clause (a) of such Section in its entirety and
substituting the following therefor:
"(a) EBITDA. EBITDA to be less than the number
specified in the table set forth below for such period:
From To and Including EBITDA
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July 1, 2000 September 30, 2000 $(3,200,000)
October 1, 2000 December 31, 2000 (2,000,000)
January 1, 2001 March 31, 2001 (600,000)
April 1, 2001 June 30, 2001 800,000
July 1, 2001 September 30, 2001 2,200,000
October 1, 2001 December 31, 2001 4,000,000 "
(d) Section 8.02 of the Credit Agreement is hereby
amended by redesignating the current clauses (e) and (f) as clauses
(f) and (g), respectively, and adding the following new clause (f):
"(e) Debt incurred in connection with the
issuance of notes pursuant to the Xxxxxxx Purchase
Agreement;"
(e) Section 8.07 of the Credit Agreement is hereby
amended by deleting clause (a) of such Section in its entirety and
substituting the following therefor:
"(a) Declare or pay any dividend or other distribution,
direct or indirect, on account of any shares of any common
stock or other equity interest of the Borrower now or
hereafter outstanding, except (i) a dividend or distribution
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payable solely in shares of that class of common stock or
other equity interest to the holders of that class, or (ii)
dividends payable to holders of shares of the Series B
Preferred Stock of the Borrower provided that the aggregate
amount paid in respect of such dividends shall not exceed
$520,000 in any fiscal year of the Borrower."
(f) Section 8.12 of the Credit Agreement is hereby
amended by deleting such section in its entirety and substituting the
following therefor:
"SECTION 8.12. ISSUANCE OF CAPITAL STOCK. Issue any
shares, interests, warrants, participations or other
equivalents (however designated) of any Loan Party; except
that (a) the Borrower may issue common stock or warrants or
options exercisable for common stock, (b) any Subsidiary of
the Borrower may issue shares of capital stock to the
Borrower or any other Subsidiary, and (c) the Borrower may
issue shares of its Series B Preferred Stock."
(g) Schedule 5.01(e) to the Credit Agreement is hereby
amended by adding the following additional item:
"Debt incurred in connection with the issuance of
notes pursuant to the Xxxxxxx Purchase Agreement."
3. Representations and Warranties. Borrower hereby represents
and warrants to Lender 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.
4. Loan Documents. Borrower and Lender agree and acknowledge
that this Amendment shall constitute a "Loan Document" under the Credit
Agreement.
5. 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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6. 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.
7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of Georgia.
8. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
9. Effectiveness of This Amendment. This Amendment shall take
effect on the date of the Borrower's issuance of its Series B Preferred Stock
in exchange for its Series A Preferred Stock (the "Effective Date").
[Signatures appear 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.
BORROWER:
NETZEE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: SEVP & CFO
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LENDER:
THE INTERCEPT GROUP, INC.
By: /s/ Xxxx X. Xxxxxxx
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Title: CEO
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