Exhibit
10.1


 


FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


THIS FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of September 2, 2009 (this “Agreement”), and effective as
of August 31, 2009 (the “Effective Date”) is entered into among Goldleaf
Financial Solutions, Inc., a Tennessee corporation (the “Borrower”),
the Guarantors party hereto, the Lenders party hereto and Bank of America,
N.A., as administrative agent for the Lenders (in such capacity, the “Administrative
Agent”).  All capitalized terms used
herein and not otherwise defined herein shall have the meanings given to such
terms in the Credit Agreement (as defined below).


 


RECITALS


 


WHEREAS, the Borrower, the Lenders and the Administrative Agent entered
into that certain Second Amended and Restated Credit Agreement, dated as of November 30,
2006, as amended by (i) that certain First Amendment to Second Amended and
Restated Credit Agreement and Consent dated as of January 17, 2008, (ii) that
certain Second Amendment to Second Amended and Restated Credit Agreement dated
as of December 24, 2008, (iii) that certain Third Amendment to Second
Amended and Restated Credit Agreement dated as of February 18, 2009 and (iv) that
certain Fourth Amendment to Second Amended and Restated Credit Agreement,
Consent and Waiver dated as of August 14, 2009 (as so amended, and as may
be further amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), pursuant to which the Lenders extended certain
financial accommodations to the Borrower;


 


WHEREAS,
the Borrower has requested that the Lenders amend the Credit Agreement as of the Effective Date subject
to the terms and conditions set forth below; and


 


WHEREAS,
the Lenders are willing to do so subject to the terms and conditions specified
in this Agreement;


 


NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:


 


1.                                       Reaffirmation.  Each of the Loan Parties acknowledges and
reaffirms (a) that it is bound by all of the terms of the Credit Agreement
and the Loan Documents to which it is a party and (b) that it is responsible
for the observance and full performance of all Obligations, including without
limitation, the repayment of the Loans and reimbursement of any drawings on a
Letter of Credit.  Furthermore, the Loan
Parties acknowledge and confirm (i) that the Administrative Agent and the
Lenders have performed fully all of their respective obligations under the
Credit Agreement and the other Loan Documents and (ii) by entering into
this Agreement, the Lenders do not waive or release any term or condition of
the Credit Agreement or any of the other Loan Documents or any of their rights
or remedies under such Loan Documents or applicable law or any of the
obligations of the Loan Parties thereunder.


 


2.                                       Amendment.  As of the Effective Date, the definition of “Applicable
Rate” in Section 1.01 of the Credit Agreement is hereby amended
to read as follows:


 


‘APPLICABLE RATE’ means, from time to time,
the following percentages per annum, based upon the Funded Debt to EBITDA Ratio
(the “Applicable  Financial Covenant”) 


 

















 


as
set forth in the most recent Compliance Certificate received by Administrative
Agent pursuant to Section 6.2(b):


 


	
  Pricing Level

  	
   

  	
  Funded Debt to EBITDA

  Ratio

  	
   

  	
  LIBOR Margin

  	
   

  	
  Base Rate Margin

  	
   

  	
  Commitment Fee

  	
   

  
	
  I

  	
   

  	
  > 3.50 to 1.0

  	
   

  	
  3.00

  	
  %

  	
  0.50

  	
  %

  	
  0.625

  	
  %

  
	
  II

  	
   

  	
  > 3.00 to 1.0 but < 3.50 to 1.0

  	
   

  	
  2.75

  	
  %

  	
  0.25

  	
  %

  	
  0.50

  	
  %

  
	
  III

  	
   

  	
  > 2.50 to 1.0 but < 3.00 to 1.0

  	
   

  	
  2.50

  	
  %

  	
  0.00

  	
  %

  	
  0.50

  	
  %

  
	
  IV

  	
   

  	
  > 1.50 to 1.0 but < 2.50 to 1.0

  	
   

  	
  2.00

  	
  %

  	
  0.00

  	
  %

  	
  0.35

  	
  %

  
	
  V

  	
   

  	
  < 1.50 to 1.0

  	
   

  	
  1.375

  	
  %

  	
  0.00

  	
  %

  	
  0.25

  	
  %

  



 


Any increase or decrease in the Applicable Rate resulting from a change
in the Applicable Financial Covenant shall become effective commencing on the
5th Business Day immediately following the date a Compliance Certificate is
delivered pursuant to Section 6.2(b); provided, however, that if a
Compliance Certificate is not delivered when due in accordance with such
Section, then Pricing Level I shall apply commencing on the 5th Business Day
following the date such Compliance Certificate was required to have been
delivered.  Commencing upon the 5th
Business Day following receipt of such delinquent Compliance Certificate, the
Applicable Rate shall be adjusted to the appropriate Pricing Level.


 


3.                                       Condition
Precedent.  This
Agreement shall be effective as of the Effective Date upon receipt by the
Administrative Agent of counterparts of this Agreement, duly executed by the
Borrower, the Guarantors, each Lender and the Administrative Agent.


 


4.                                       Guarantor
Acknowledgement.


 


(a)                                  Each of the Guarantors
hereby acknowledges that it has reviewed the terms and provisions of the Credit
Agreement and this Agreement.  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 Agreement.  Each of the Guarantors represents and
warrants that all representations and warranties contained in the Credit
Agreement, this Agreement 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.


 


2

















 


5.                                       Release.  As a material part of the consideration for the
Administrative Agent, the L/C Issuer and the Lenders entering into this
Agreement, the Loan Parties agree as follows (the “Release Provision”):


 


(a)                                  By their signatures below,
the Borrower and the other Loan Parties hereby agree that the Administrative
Agent, the L/C Issuer and each of the Lenders, and each of their respective
Affiliates, officers, directors, agents and employees, and their respective
successors and assigns (hereinafter all of the above collectively referred to
as the “Bank Group”), are irrevocably and unconditionally released,
discharged and acquitted from any and all actions, causes of action, claims,
demands, damages and liabilities of whatever kind or nature, in law or in
equity, now known or unknown, suspected or unsuspected to the extent that any
of the foregoing arises from any action or failure to act solely in connection
with the Loan Documents on or prior to the date hereof.


 


(b)                                 Each Loan Party hereby
acknowledges, represents and warrants to the Bank Group that:


 


(i)                                     such Loan Party
has read and understands the effect of the Release Provision.  Such Loan Party has had the assistance of
independent counsel of its own choice, or has had the opportunity to retain
such independent counsel, in reviewing, discussing, and considering all the
terms of the Release Provision; and if counsel was retained, counsel for such
Loan Party has read and considered the Release Provision and advised such Loan
Party with respect to the same.  Before
execution of this Agreement, such Loan Party has had adequate opportunity to make
whatever investigation or inquiry it may deem necessary or desirable in
connection with the subject matter of the Release Provision.


 


(ii)                                  such Loan Party
is not acting in reliance on any representation, understanding, or agreement
not expressly set forth herein.  Such
Loan Party acknowledges that the Bank Group has not made any representation
with respect to the Release Provision except as expressly set forth herein.


 


(iii)                               such Loan Party
has executed this Agreement and the Release Provision thereof as its free and
voluntary act, without any duress, coercion, or undue influence exerted by or
on behalf of any person.


 


(iv)                              such Loan Party
is the sole owner of the claims released by the Release Provision, and such
Loan Party has not heretofore conveyed or assigned any interest in any such
claims to any other Person.


 


(c)                                  Such Loan Party understands
that the Release Provision was a material consideration in the agreement of the
Administrative Agent, the L/C Issuer and the Lenders to enter into this
Agreement.


 


6.                                       Representations
and Warranties.


 


(a)                                  The Borrower
and each Guarantor hereby represent and warrant to and in favor of the Lenders
as follows:


 


3

















 


(i)                                     the Borrower and each
Guarantor has the corporate power and authority (1) to enter into this
Agreement and (2) to do all acts and things as are required or
contemplated hereunder to be done, observed and performed by it;


 


(ii)                                  this Agreement 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 and each Guarantor, enforceable against the
Borrower and each Guarantor in accordance with its terms, subject, as to
enforcement of remedies, to the following qualifications:  (1) 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 (2) 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); and


 


(iii)                               the execution and delivery
of this Agreement does not and will not require the consent or approval of any
regulatory authority or governmental authority or agency having jurisdiction
over the Borrower or any Guarantor 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 Guarantor, or any provision of any statute,
judgment, order, indenture, instrument, agreement, or undertaking, to which the
Borrower or any Guarantor is party or by which the Borrower’s or any Guarantor’s
assets or properties are bound.


 


(b)                                 The Borrower hereby
represents and warrants to and in favor of the Lenders as follows:


 


(i)                                     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 (1) previously fulfilled in
accordance with the terms of the Credit Agreement, (2) the Borrower has
provided the Lenders updates to information provided to the Lenders in
accordance with the terms of such representations and warranties or (3) relating
specifically to the Closing Date or otherwise inapplicable; and


 


(ii)                                  no Default exists both
before and after giving effect to this Agreement and there has been no Material
Adverse Effect both before and after giving effect to this Agreement.


 


7.                                       Miscellaneous.


 


(a)                                  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 Lenders, and the 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 Agreement 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


 


4

















 


Agreement
or any document executed in connection therewith.  Instead it is the express intention to affirm
the Credit Agreement and the security created thereby.


 


(b)                                 This Agreement
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.


 


(c)                                  This Agreement
shall be binding upon and inure to the benefit of the successors and permitted
assigns of the parties hereto.


 


(d)                                 THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF GEORGIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.


 


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5

















 


Each of the parties hereto has caused a counterpart of this Agreement
to be duly executed and delivered as of the date first above written.


 


	
  BORROWER:

  	
  GOLDLEAF
  FINANCIAL SOLUTIONS, INC.,

  
	
   

  	
  as
  Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory L. Boggs

  
	
   

  	
  Name:

  	
  Lynn Boggs

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  GUARANTORS:

  	
  GOLDLEAF
  TECHNOLOGIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory L. Boggs

  
	
   

  	
  Name:

  	
  Lynn Boggs

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TOWNE
  SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory L. Boggs

  
	
   

  	
  Name:

  	
  Lynn Boggs

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FORSEON
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory L. Boggs

  
	
   

  	
  Name:

  	
  Lynn Boggs

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GOLDLEAF
  LEASING, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory L. Boggs

  
	
   

  	
  Name:

  	
  Lynn Boggs

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GOLDLEAF
  INSURANCE, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory L. Boggs

  
	
   

  	
  Name:

  	
  Lynn Boggs

  
	
   

  	
  Title:

  	
  CEO

  



 


GOLDLEAF FINANCIAL
SOLUTIONS, INC.


FIFTH AMENDMENT


 

















 


	
  LENDERS:

  	
  BANK
  OF AMERICA, N.A.,

  
	
   

  	
  as
  Lender and L/C Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ethan S. Grossman

  
	
   

  	
  Name:

  	
  Ethan S. Grossman

  
	
   

  	
  Title:

  	
  AVP

  
	
   

  	
   

  	
   

  
	
   

  	
  THE PEOPLES BANK,

  
	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Rice

  
	
   

  	
  Name:

  	
  Paul Rice

  
	
   

  	
  Title:

  	
  FVP/Commercial Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  WACHOVIA BANK, N.A.,

  
	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elaine Eaton

  
	
   

  	
  Name:

  	
  Elaine Eaton

  
	
   

  	
  Title:

  	
  Senior Vice President

  



 


GOLDLEAF FINANCIAL
SOLUTIONS, INC.


FIFTH AMENDMENT


 

















 


	
  ADMINISTRATIVE
  AGENT:

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Rosanne Parsill

  
	
   

  	
  Name:

  	
  Rosanne
  Parsill

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  



 


GOLDLEAF FINANCIAL
SOLUTIONS, INC.


FIFTH AMENDMENT