EXHIBIT 10.1
THIRD AMENDMENT TO LOAN AND
SECURITY AGREEMENT AND JOINDER AGREEMENT
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This THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT AND JOINDER AGREEMENT
(the "Amendment") is made and entered into as of August 6, 1999, by and among
THE INTERCEPT GROUP, INC., a Georgia Corporation ("InterCept"), INTERCEPT
SWITCH, INC., a Georgia Corporation ("ISI"), PROVESA, INC., a Georgia
Corporation ("ProVesa"), PROVESA SERVICES, INC., a Georgia Corporation ("PSI")
(InterCept, ISI, ProVesa and PSI is each sometimes individually referred to
herein as a "Borrower" and collectively as the "Borrowers"), LEV ACQUISITION
CORP., a Georgia corporation ("LEV"), DIRECT ACCESS INTERACTIVE, INC., a Georgia
corporation ("DAI"), SBS DATA SERVICES, INC., an Alabama corporation ("SBS
Data") (LEV, DAI and SBS Data are sometimes referred to herein individually as a
"New Borrower" and collectively as the "New Borrowers"), and FIRST UNION
NATIONAL BANK, a national banking association ("Bank").
W I T N E S S E T H:
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WHEREAS, Borrowers and Bank are party to that certain Loan and Security
Agreement, dated as of April 28, 1998 (as the same has been amended from time to
time, the "Agreement");
WHEREAS, Borrowers have requested that Bank (i) increase the maximum
principal amount available under the line of credit established in favor of
Borrowers pursuant to the Agreement, and (ii) consent to (A) the acquisition by
InterCept and DAI through merger transactions (collectively, the "Merger
Transactions") of the following companies: X.X. Xxxxxxx & Associates, Inc.,
Data Equipment Services, Inc., Direct Access Interactive, Inc., SBS Corporation
and SBS Data Services, Inc. and (B) the related transfers of the proceeds of
certain of the Revolving Loans made pursuant to the Agreement in connection with
such Merger Transactions;
WHEREAS, Bank has agreed to (i) increase the maximum principal amount
available to Borrowers under the line of credit established in favor of
Borrowers pursuant to the Agreement, and (ii) consent to the Merger
Transactions, on the condition that Borrowers and New Borrowers enter this
Amendment;
WHEREAS, Borrowers have requested that Bank consent to the transactions
described in (i) that certain Letter of Understanding Concerning the Acquisition
of the Internet Banking Business of The Bankers Bank, dated July 29, 1999,
between InterCept and The Bankers' Bank and (ii) that certain Letter of
Understanding Concerning the Acquisition of the Internet Banking Business of TIB
The Independent Bankers Bank, dated July 29, 1999, between InterCept and TIB The
Independent Bankers Bank (collectively, the "Letters of Understanding");
WHEREAS, Bank has agreed to consent to the transactions described in the
Letters of Understanding, provided, that (i) prior to (A) any consummation of
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the transactions described in the Letters of Understanding, or (B) any change in
the ownership of the capital stock of DAI (as described in subsection (ii) of
this clause), all of the assets of DAI, other than the assets of DAI related
solely to the internet banking business, will be transferred to InterCept for
good and valuable consideration pursuant to documents reasonably satisfactory to
Bank (which documents will be collaterally assigned by InterCept to Bank), (ii)
at such time as InterCept no longer holds at least 50% of the capital stock of
DAI, Bank will release its lien in the internet banking assets of DAI in
exchange for a pledge of the capital stock of DAI still held by InterCept (which
pledge shall occur pursuant to documents reasonably satisfactory to Bank),
provided that at the time such pledge takes place InterCept will own at least
20% of the issued and outstanding capital stock of DAI, and (iii) Borrowers and
New Borrowers enter into this Amendment;
WHEREAS, Borrowers and New Borrowers have agreed to enter this Amendment;
NOW, THEREFORE, for and in consideration of the premises and mutual
promises and covenants contained herein, and other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto, intending to be and
being legally bound hereby, agree as follows:
1. Capitalized terms, as used herein, shall have the meaning set forth in
the Agreement, unless the context otherwise requires.
2. Borrowers, New Borrowers and Bank hereby consent and agree to the items
set forth in the above-listed recitals.
3. The preamble of the Agreement is hereby amended by deleting therefrom
all references to the number "$20,000,000.00" and inserting in lieu thereof the
number "$35,000,000.00."
4. Section 1.01 of Article I of the Agreement is hereby amended by adding
the following phrase to the end thereof "; provided, however, that Direct Access
Interactive, Inc. will not be deemed an "Affiliate" hereunder in the event that
InterCept ceases to own at least fifty percent (50%) of such entity's capital
stock."
5. Section 2.01(a) of Article II of the Agreement is hereby amended by
deleting therefrom the phrase and parenthetical "TWENTY MILLION AND NO/100THS
DOLLARS ($20,000,000.00)" and inserting in lieu thereof the phrase and
parenthetical "THIRTY-FIVE MILLION AND NO/100THS DOLLARS ($35,000,000.00)."
6. Section 2.01(d) of Article II of the Agreement is hereby amended by
deleting therefrom the date "April 28, 2001" and inserting in lieu thereof the
date "June 30, 2002."
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7. Section 4.02 of Article IV of the Agreement is hereby amended by
deleting therefrom the reference to the number "$20,000,000.00" and inserting in
lieu thereof the number "$35,000,000.00."
8. Section 8.07 of Article VIII of the Agreement is here by amended by
adding the following phrase to end thereof "and loans to Direct Access
Interactive, Inc. for working capital purposes which do not exceed $5,000,000 in
the aggregate at any time."
9. Section 8.08 of Article VIII of the Agreement is hereby amended by
deleting therefrom the number "$4,000,000" and inserting in lieu thereof the
number "$6,000,000.00."
10. As a condition to its consent to the Merger Transactions, Bank has
required that each New Borrower become obligated to Bank under the terms of the
Agreement; therefore, each New Borrower agrees as follows:
A. Joinder of New Borrowers.
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(i) Joinder. Each New Borrower hereby irrevocably acknowledges
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that it is a Borrower within the meaning of, and subject to, the
Agreement and that each reference to Borrower or Borrowers in the
Agreement shall include each New Borrower. Pursuant to the
Agreement, as a Borrower, each New Borrower is a "Maker" under
the Revolving Note and is bound by each and every other Loan
Document as if a signatory to each such Loan Document on the
Closing Date, and each New Borrower shall comply with, and be
subject to, all of the terms, conditions, covenants, agreements
and obligations set forth in each of the Loan Documents. Each
New Borrower acknowledges that it has received a copy of each of
the subject Loan Documents and that it has read and understands
the terms thereof. Each New Borrower further acknowledges that
it has authorized the transactions evidenced hereby and has full
corporate power and authority to enter into and become bound to
the Loan Documents.
(ii) Schedules. Any amendments to the Schedules required by
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each New Borrower's becoming a Borrower are attached hereto and
are hereby incorporated in and made a part of the Schedules to
the Loan Agreement.
(iii) Financing Statements and Other Documents. Each New
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Borrower hereby agrees to provide all information, and execute
all documents reasonably requested by Bank, in connection with
Bank's perfection of the lien created against the assets of each
New Borrower pursuant to the terms of the Agreement, including
without limitation UCC-1 Financing Statements and Landlord Waiver
Agreements. In addition, each
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New Borrower agrees to complete the Perfection Certificate
attached hereto as Exhibit "A".
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(iv) New Note. Each Borrower and each New Borrower agrees
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to execute and deliver to Bank an amended and restated Revolving
Note, substantially in the form of Exhibit "B" attached hereto,
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which amended and restated Revolving Note will reflect the
amendments contained herein, as well as the joinder of each New
Borrower thereto. Upon receipt of the original, fully-executed
amended and restated Revolving Note from the Borrowers and the
New Borrowers, Bank agrees to return the original Revolving Note
to InterCept as stamped "Restated."
11. From and after the date hereof, the Agreement shall be deemed to mean
the Agreement, as amended, and the Revolving Note shall be deemed to mean the
amended and restated Revolving Note.
12. Each Borrower agrees to take all actions requested by Bank in order for
Bank to maintain its perfected, first priority lien on the assets of such
Borrower following the consummation of the Merger Transactions.
13. As a condition precedent to the consummation of the transactions
contemplated hereby, Borrowers and New Borrowers agree to provide evidence
satisfactory to Bank in its sole discretion that the liens and encumbrances
listed on Exhibit "C" hereto have been released prior to the date hereof.
14. As a condition subsequent to the consummation of the transactions
contemplated hereby, the documents evidencing each of the Merger Transactions
shall be collaterally assigned by the applicable Borrower or New Borrower to
Bank as further security for the Obligations. In the event such collateral
assignments have not been consummated pursuant to documents reasonably
satisfactory to Bank in its discretion within twenty (20) days of the date
hereof, a Default shall be deemed to have occurred under the Loan Documents.
15. Borrowers and New Borrowers hereby agree to pay to Bank an amendment
fee in an amount equal to one-half of one percent (0.50%) of $15,000,000.00,
which amendment fee shall be due and payable on the date hereof.
16. Each Borrower and each New Borrower hereby reaffirms each of the
agreements, covenants, and undertakings set forth in the Agreement, and each and
every other agreement, instrument and document executed in connection therewith
or pursuant thereto as if each Borrower and each New Borrower were making said
agreements, covenants and undertakings on the date hereof. Specifically, each
Borrower and New Borrower represents and warrants that as of the date hereof and
provided there are no further adjustments thereto, Borrowers and New Borrowers
are
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in full compliance with Article IX of the Agreement following consolidation
of the pro forma financial statements of the entities acquired in the Merger
Transactions with those of InterCept.
17. This Amendment represents a modification only and is not, and should
not be construed as, a novation.
18. Except as hereinabove set forth, the Agreement shall remain otherwise
unmodified and in full force and effect, and all other documents, instruments
and agreements executed in connection therewith or pursuant thereto shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment under
hand and seal as of the date first above written.
Borrowers:
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Attest: THE INTERCEPT GROUP, INC.
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxxx
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Secretary Title: CFO
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[CORPORATE SEAL]
Attest: INTERCEPT SWITCH, INC.
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxxx
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Secretary Title: CFO
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[CORPORATE SEAL]
Attest: PROVESA, INC.
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxxx
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Secretary Title: CFO
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[Corporate Seal]
Attest: PROVESA SERVICES, INC.
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxxx
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Secretary Title: CFO
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[Corporate Seal]
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New Borrowers:
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Attest: LEV ACQUISITION CORP.
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxxx
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Secretary Title: CFO
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[Corporate Seal]
Attest: DIRECT ACCESS INTERACTIVE, INC.
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxxx
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Secretary Title: CFO
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[Corporate Seal]
Attest: SBS DATA SERVICES, INC.
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxxx
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Secretary Title: CFO
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[Corporate Seal]
Bank:
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FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxxx
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Title: Bank Officer
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