Exhibit 10.1


 


THIRD AMENDMENT TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


This THIRD AMENDMENT TO SECOND AMENDED AND
RESTATED CREDIT AGREEMENT (this “Amendment”) is made and entered into as
of this 18th day of February, 2009, by and among GOLDLEAF FINANCIAL SOLUTIONS,
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 WACHOVIA BANK, N.A., as a lender (“Wachovia”)
(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 Second Amended and Restated Credit Agreement, dated as of November 30,
2006, as amended by that certain First Amendment dated as of January 17,
2008 and by that certain Second Amendment dated as of December 24, 2008
(as so amended, and as may be further amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), pursuant
to which certain Lenders extended certain financial accommodations to the
Borrower; and


 


WHEREAS, the Borrower has requested that the Lenders amend
certain provisions of the Credit Agreement as more fully set forth herein.


 


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.  Section 1.1 of the Credit Agreement is hereby amended by deleting
the first sentence in the definition of “EBITDA” in its entirety and replacing
it with the following text:


 


“‘EBITDA’ means, with
respect to any Person for any period, on a consolidated basis the sum of (a) net
income available to common stockholders plus (b) to the extent
deducted in arriving at net income, the sum of: 
(i) preferred stock dividends paid and preferred stock deemed
distributions, (ii) income tax expense (less income tax benefit), (iii) interest
expense, (iv) depreciation and amortization, (v) annual maintenance
fees that will be required to be excluded from deferred revenue and the profit
and loss statement in accordance with GAAP purchase accounting rules and (vi) any
non-cash charges and expenses, including goodwill impairment charges, minus
(c) to the extent included in arriving at net income, any (i) non-cash
gains and (ii) gains as a result of payments in connection with the sale
of the core data processing and teller system business disposed of by Borrower
including, without limitation, earnout payments; provided, however,
for calculation periods ending on or after December 31, 2008, to the
extent otherwise 


 

















 


included for such
calculation period, EBITDA shall not include EBITDA from the core data
processing and teller system business disposed of by Borrower.”


 


3.             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 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.


 


4.             Conditions Precedent to
Effectiveness of Amendment.  The
effectiveness of this Amendment is subject to the following conditions
precedent:


 


(a)           Receipt by Lenders of this Amendment,
duly executed and delivered by Borrower, the Guarantors and the Lenders; and


 


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(b)           the Borrower shall have paid all fees and
expenses required to be paid in connection with this Amendment on the date
hereof, including without limitation (i) an amendment fee of $5,000 for
each Lender and (ii) all reasonable fees, costs and expenses of closing,
including all reasonable legal fees of Lenders’ counsel, presented as of the
date of this Amendment.


 


5.             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, 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 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.


 


6.             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.  


 


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Instead it is the express intention to affirm the Credit Agreement and
the security created thereby.


 


7.             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.


 


8.             Successors and Assigns. 
This Amendment shall be binding upon and inure to the benefit of the
successors and permitted assigns of the parties hereto.


 


9.             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]


 


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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/Gregory Lynn
  Boggs

  
	
   

  	
   

  	
  Name:

  	
  Lynn Boggs

  
	
   

  	
   

  	
  Title:

  	
  President/CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Thomas M.
  Paulk

  
	
   

  	
   

  	
  Name:

  	
  Thomas M. Paulk

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE PEOPLES BANK,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Rice

  
	
   

  	
   

  	
  Name:

  	
  Paul Rice

  
	
   

  	
   

  	
  Title:

  	
  1st VP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WACHOVIA BANK, N.A.

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elaine Eaton

  
	
   

  	
   

  	
  Name:

  	
  Elaine Eaton

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice
  President

  



 


 


Third Amendment to
Second Amended and Restated Credit Agreement

Signature Page


 

















 


	
  ACKNOWLEDGED AND CONSENTED

  	
   

  
	
  TO BY THE FOLLOWING GUARANTORS:

  	
   

  
	
   

  	
   

  
	
  GOLDLEAF TECHNOLOGIES, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Gregory Lynn
  Boggs

  	
   

  
	
   

  	
  Name:

  	
  G. Lynn Boggs

  	
   

  
	
   

  	
  Title:

  	
  CEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  TOWNE SERVICES, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Gregory Lynn
  Boggs

  	
   

  
	
   

  	
  Name:

  	
  G. Lynn Boggs

  	
   

  
	
   

  	
  Title:

  	
  CEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  FORSEON CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Gregory Lynn
  Boggs

  	
   

  
	
   

  	
  Name:

  	
  G. Lynn Boggs

  	
   

  
	
   

  	
  Title:

  	
  CEO

  	
   

  



 


 


Third Amendment to
Second Amended and Restated Credit Agreement

Signature Page


 

















 


	
  GOLDLEAF LEASING, LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Gregory Lynn
  Boggs

  	
   

  
	
   

  	
  Name:

  	
  G. Lynn Boggs

  	
   

  
	
   

  	
  Title:

  	
  CEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  GOLDLEAF INSURANCE, LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/Gregory Lynn
  Boggs

  	
   

  
	
   

  	
  Name:

  	
  G. Lynn Boggs

  	
   

  
	
   

  	
  Title:

  	
  CEO

  	
   

  
					



 


 


Third Amendment to
Second Amended and Restated Credit Agreement

Signature Page