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EXHIBIT 10.15
LOAN AGREEMENT
LOAN AGREEMENT dated as of May 16, 1999 entered into by and between
Security First Technologies Corporation, a Delaware corporation ("Lender"), and
FICS Group N.V., a Belgian corporation ("Borrower").
WHEREAS, Lender has entered into a Stock Purchase Agreement, dated the
date hereof (the "Purchase Agreement"), with Borrower and each shareholder of
Borrower, pursuant to which such shareholders have agreed to purchase certain
shares of Lender;
WHEREAS, Borrower has requested that Lender make available to Borrower a
line of credit in the amount of up to $10,000,000 to finance Borrower's working
capital needs; and
WHEREAS, Lender is willing to do so on the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual conditions and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Lender agree as
follows.
1. CERTAIN DEFINITIONS. As used herein the terms set forth below
shall have the meanings indicated:
"Commitment Period" means the period beginning on the date of this
Agreement and ending on the earlier to occur of: (i) September 26, 2000 or (ii)
the date of the closing of an initial public offering of the common stock of
Borrower on the Nasdaq National Market, EASDAQ or any other established
securities exchange.
"Event of Default" means any one or more of the following events:
(a) failure by Borrower to pay any principal, interest or other
amount due hereunder or on account of the Loan, within 15 days of the date
when due;
(b) failure by Borrower to perform or discharge, observe or comply
with any of its covenants or agreements set forth herein or in the Note
and such failure shall continue unremedied for a period of 15 days after
written notice thereof by Lender to Borrower;
(c) any representation or warranty of Borrower to Lender set forth
herein is found to have been false or misleading in any material respect
as of the time when made;
(d) Borrower's liquidation, termination, dissolution or ceasing to
carry on any substantial part of its current business;
(e) provided that the Purchase Agreement has then been terminated, a
change in control with respect to Borrower or consummation by Borrower of
a reorganization, merger or consolidation with any other person or entity,
transfer of all or substantially all of its assets or properties or
consummation of any other plan or arrangement involving a similar
extraordinary corporate transaction.
(f) commencement by Borrower of a voluntary proceeding seeking
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law, or seeking appointment of a trustee,
receiver, liquidator or other similar official for it or any substantial
part of its assets; or its consent to any of the foregoing in an
involuntary
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proceeding against it; or Borrower shall generally not be paying its
debts as they become due or admit in writing its inability to do so; or
an assignment for the benefit of, or the offering to or entering into by
Borrower of any composition, extension, reorganization or other agreement
or arrangement with, its creditors; or
(g) commencement of an involuntary proceeding against Borrower
seeking relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law, or seeking appointment of a trustee,
receiver, liquidator or other similar official for it or any substantial
part of its assets, which proceeding is not dismissed or stayed within 60
days.
"Note" means the note executed and delivered by Borrower to Lender in the
form of Exhibit A hereto, made to evidence the Loan.
"Loan" has the meaning given in Section 2(a) hereof.
2. THE LOAN.
(a) On the date of this Agreement, Lender is making an advance to Borrower
in the amount of $5,000,000 pursuant to a Note substantially in the form of
Exhibit A hereto. Not later than five (5) business days following its receipt of
Borrower's written notice therefor, Lender shall make additional advances to
Borrower in an amount specified in such written notice; provided that such
additional advances shall not exceed $1,000,000 in any calendar month or,
together with the $5,000,000 being borrowed on the date of this Agreement,
$10,000,000 during the Commitment Period (such advances are referred to herein
collectively as the "Loan"). Borrower may re-borrow under the Loan at any time
during the Commitment Period notwithstanding any full or partial repayment of
the Loan by Borrower.
(b) The Loan shall be evidenced by a Note in the form of Exhibit A hereto
and shall be a general unsecured obligation of Borrower. The Loan shall be due
and payable and shall bear interest as set forth in the Note.
(c) Lender shall make the Loan available to Borrower by wire transfer or
otherwise as Borrower requests in its notices to advance the Loan (provided that
Borrower shall reimburse Lender for any administrative expense (wire transfer
fees and the like) incurred by Lender in connection with such advance methods,
except for an advance by bank or certified check).
3. REPRESENTATIONS AND WARRANTIES.
Borrower hereby represents and warrants to Lender that:
(a) Organization and Qualification. Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all required corporate power and
authority to own its property, to carry on its business as presently conducted
and to carry out the transactions contemplated hereby.
(b) Authorization of Transaction. The execution, delivery and performance
of this Agreement and the Note have been duly authorized by all necessary
corporate or other action of Borrower. This Agreement and the Note each
represents a valid and binding obligation of Borrower, enforceable in accordance
with its terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors.
(c) Approvals; Compliance With Laws. The execution, delivery and
performance of this Agreement and the Note and the transactions contemplated
thereby (i) do not require any approval or consent of, or filing with, any
governmental agency or authority or otherwise which has not been
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obtained and which is not in full force and effect as of the date hereof, (ii)
will not conflict with or constitute a breach or violation of the Restated
Articles of Association (Statutes) of Borrower, and (iii) will not result in a
violation of or any law or regulation to which it is subject.
4. BORROWER'S AGREEMENTS. Borrower agrees as follows:
(a) Borrower will notify Lender, at least 30 days prior to any such event,
of any change in Borrower's exact legal name or any change in its principal
place of business or location as set forth in Section 7 of this Agreement.
(b) During the Commitment Period, Borrower will deliver to Lender, with
reasonable promptness, (i) such financial statements and other information as
Borrower regularly provides to any other lender to Borrower, and (ii) such other
financial data related to the business, affairs and financial condition of
Borrower as is available to Borrower and as from time to time Lender may
reasonably request; provided that Lender acknowledges that its receipt of any
such information from Borrower shall be subject to customary confidentiality and
non-disclosure provisions which Lender shall have agreed to in writing prior to
receipt of such information.
(c) Borrower shall incur no indebtedness that ranks senior in payment to
the indebtedness evidenced by the Note.
5. EVENTS OF DEFAULT; REMEDIES. Upon the occurrence and during the
continuance of an Event of Default (as defined in Section 1 above), (a) Borrower
shall have no further right to request advances under the Loan, and (b) the Loan
shall bear interest at the Default Rate of Interest, as defined in the Note.
6. EXPENSES. Borrower agrees to pay Lender on demand any and all
reasonable out-of-pocket costs and expenses of any nature (including without
limitation reasonable attorneys' fees and disbursements) which may be incurred
by Lender in connection with exercise of Lender's rights under this Note against
the Borrower after an Event of Default; any enforcement, collection or other
proceedings with respect to the Loan; or any bankruptcy, insolvency or other
similar proceedings of the Borrower.
6. CONDITIONS PRECEDENT.
Borrower acknowledges and agrees that Lender will not make advances under
the Loan, nor will Lender entertain any request from Borrower for advances under
the Loan, unless and until all of the following conditions have been satisfied
and remain satisfied as of the date of funding the Loan:
(a) Representations and Warranties. Borrower's representations and
warranties contained herein shall be correct and complete in all material
respects;
(b) Covenants. Borrower shall be in compliance in all material respects
with all covenants and agreements contained herein;
(c) No Events of Default. There shall exist no Event of Default or any
event which, with the passage of time or the giving of notice or both, would
constitute an Event of Default; and
(d) Delivery of Note. Borrower shall have delivered, or caused to be
delivered, to Lender the Note.
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7. MISCELLANEOUS PROVISIONS.
(a) Notices. Unless otherwise specified herein, all notices hereunder
shall be in writing directed to the addresses indicated below, and such notices
shall be effective and be deemed received on the day when delivered by hand or
by facsimile transmission; on the next business day, if by commercial overnight
courier; and on the third business day, if by registered or certified mail,
postage prepaid:
If to Lender, to:
Security First Technologies Corporation
0000 Xxxxxxxxx Xxxx, XX, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, Chief Financial Officer
with copies (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
Columbia Square
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
and
Xxxxx & Xxxxxxx, L.L.P.
Xxxxxx xxx Xxxx 00
0000 Xxxxxxxx, Xxxxxxx
Attn: Xxxxx v.S. Xxxx, Esq.
If to Borrower, to:
FICS Group X.X.
Xxxxxxxxxxxxx 00
0000 Xxxxxxxx, Xxxxxxx
Attn: Xxxxxx Xxxxxxxx, Chief Financial Officer
with a copy (which shall not constitute notice) to:
Xxxxx Xxxxxxx Xxxxx & Gesmer
Stanmore House
00-00 Xx. Xxxxx'x Xxxxxx
Xxxxxx XX0X 0XX, Xxxxxxx
Attn: Xxxxxxxx X. Xxxx, Esq.
Colin Xxxx Xxxxxxx, Esq.
(b) No Waiver. No failure to exercise and no delay in exercising, on the
part of Lender, any right or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right or remedy. Waiver by Lender
of any right or remedy on any one occasion shall not be construed as a bar to or
waiver thereof or of any other right or remedy on any future occasion. Lender's
rights and remedies hereunder, under any agreement or instrument supplemental
hereto or under any other
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agreement or instrument shall be cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
(c) Assignment. This Agreement shall be binding upon and shall inure to
the benefit of Borrower and Lender and their respective successors and assigns;
provided that Borrower may not assign or transfer any rights or obligations
hereunder without Lender's prior written consent.
(d) Governing Law; Jurisdiction. This Agreement shall be governed by the
laws of the State of Delaware (other than its laws relating to conflicts of
laws).
(e) Currency. All amounts set forth herein shall be denominated in
currency of the United States of America.
Duly executed as of the date set forth above.
FICS GROUP N.V.
By: /s/ XXXXXX XXXXXXXX
-------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
SECURITY FIRST TECHNOLOGIES CORPORATION
By: /s/ XXXXXX X. XXXXXXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
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EXHIBIT A
PROMISSORY NOTE
$10,000,000.00 Washington, D.C.
May 16, 1999
FOR VALUE RECEIVED, FICS Group N.V., a Belgian corporation ("Maker"),
hereby promises to pay to the order of Security First Technologies Corporation,
a Delaware corporation, at its place of business at 0000 Xxxxxxxxx Xxxx, XX,
Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 ("Lender"), the sum of TEN MILLION DOLLARS
($10,000,000.00), or so much as may have been advanced to Maker as provided in
that certain Loan Agreement (the "Loan Agreement") dated as of the date hereof
between Maker and Lender, together with interest on the unpaid principal amount
from time to time outstanding prior to demand at a fixed rate per annum equal to
one-half percent (1/2%) over LIBOR (as defined below) as in effect from time to
time hereunder. All capitalized terms not otherwise defined in this Note shall
have the meanings provided in the Loan Agreement.
1. Payment. Other than as set forth in paragraph 3 hereof, all outstanding
principal and interest shall be due and payable in full 10 business days
immediately following expiration of the Commitment Period. All amounts due under
this Note are subject to prepayment in full or in part at any time without
premium or penalty.
After the occurrence and during the continuance of an Event of Default,
principal outstanding hereunder shall bear interest at a fixed rate equal to the
sum of LIBOR as then in effect plus two percent (2%) per annum (the "Default
Rate of Interest").
2. Interest. Interest and fees shall be calculated on the basis of a
360-day year times the actual number of days elapsed. "LIBOR," as used herein,
shall mean for any day the "London Interbank Offered Rate" for obligations of
one year published in The Wall Street Journal Europe under the heading "Money
Rates" on such day (or on the next day on which The Wall Street Journal Europe
is published). In no event shall interest payable hereunder exceed the highest
rate permitted by applicable law. To the extent any interest received by Lender
exceeds the maximum amount permitted, such payment shall be credited to
principal, and any excess remaining after full payment of principal shall be
refunded to Maker.
3. Forgiveness of Loan upon Lender Default. Reference is made to (i) the
certain Stock Purchase Agreement, dated the date hereof (the "BelCo Purchase
Agreement"), by and among Lender, Maker, the stockholders of Maker and S1 Europe
Holdings N.V., a Belgian corporation and wholly-owned subsidiary of Lender ("S1
Europe"), and (ii) the certain Stock Purchase Agreement, dated the date hereof
(the "Lender Purchase Agreement"), by and among Lender, Maker and the
stockholders of Maker. In the event that either (i) the BelCo Purchase Agreement
is terminated pursuant to Section 8.1 (e) thereof by any of the Majority Sellers
(as defined therein) (as a result of the willful or intentional breach on the
part of S1 Europe of a representation, warranty, covenant or other agreement) or
(ii) the Lender Purchase Agreement is terminated pursuant to Section 9.2 thereof
by any of the Majority Sellers (as defined therein) (as a result of any willful
or intentional breach on the part of Lender of a representation, warranty,
covenant or other agreement), all amounts due and outstanding under this Note
shall be immediately and automatically forgiven and this Note shall be of no
further effect. Lender and Maker agree that the provisions of this paragraph 3
are not intended to constitute liquidated damages and shall not preclude the
assertion of any other rights or the seeking of any other remedies, whether at
law or in equity, by any party hereto.
4. Payment in Kind. Maker may, at its choice, pay any or all of the
obligations due and payable under this Note in cash or in shares of its common
stock. In the event Maker elects to pay in shares of its common stock, the
number of shares to be tendered by the Maker in satisfaction of such obligations
shall equal (x) the amount of its outstanding obligations hereunder so being
paid
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divided by (y) $6,000.00. Such shares, when issued, will be duly authorized,
validly issued, fully paid and non-assessable, and free of any liens or
encumbrances, and will be issued in compliance with all applicable laws.
5. Waiver of Presentment. Maker and all guarantors and endorsers hereby
waive presentment, demand, notice, protest, and all other demands and notices in
connection with the delivery, acceptance, performance and enforcement of this
Note, and assent to extensions of the time of payment or forbearance or other
indulgence without notice. No delay or omission of Lender in exercising any
right or remedy hereunder shall constitute a waiver of any such right or remedy.
Acceptance by Lender of any payment after demand shall not be deemed a waiver of
such demand. A waiver on one occasion shall not operate as a bar to or waiver of
any such right or remedy on any future occasion.
6. Currency. All amounts set forth herein shall be payable in currency of
the United States of America.
[SIGNATURE PAGE FOLLOWS]
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Duly executed as of the date set forth above.
FICS GROUP N.V.
By:
--------------------------
Name:
Title:
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