Exhibit 10.21
LOAN AGREEMENT
among
THE INTERCEPT GROUP, INC.,
a corporation formed under the laws of the State of Georgia
and
SLMsoft.com Inc.,
a corporation formed under the laws of the Province of Ontario
and
SLMsoft.com INC.,
a corporation formed under the laws of the State of Kansas
December 3, 2001
LOAN AGREEMENT
This Loan Agreement (the "Agreement") dated as of December 3, 2001 is
by and among SLMsoft.com Inc., a corporation formed under the laws of the
Province of Ontario ("Shareholder"), SLMsoft.com Inc., a corporation formed
under the laws of the State of Kansas and a wholly-owned subsidiary of
Shareholder (the "Company" and together with Shareholder, "Borrowers"), and The
InterCept Group, Inc., a Georgia corporation ("InterCept").
RECITALS:
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(1) Borrowers have requested that InterCept make available to Borrowers
a term loan in the original principal amount of Seven Million and no/100ths
Dollars (the "Loan") on the terms and conditions hereinafter set forth, and for
the purpose(s) hereinafter set forth.
(2) To induce InterCept to make the Loan to Borrowers, Borrowers have
made certain representations to InterCept;
(3) InterCept and Borrowers acknowledge that Borrowers intend to repay
the Loan, from, among other things, proceeds obtained from the sale of Pledged
Collateral (as defined in the Pledge Agreement); and
(4) InterCept, in reliance upon the representations and inducements of
Borrowers, has agreed to make the Loan upon the terms and conditions hereinafter
set forth.
In consideration of the mutual representations, warranties, covenants
and agreements, and upon and subject to the terms and the conditions hereinafter
set forth in this Agreement, the parties agree as follows:
Section 1. The Loan.
1.1 Evidence of Loan Indebtedness and Repayment. Subject to the terms
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and conditions contained herein, InterCept shall make the Loan to Borrowers by
wire transfer to the bank account specified in the Disclosure Memorandum in
immediately available funds. The Loan shall be evidenced by a Secured Promissory
Note in the original principal amount of Seven Million and no/100ths Dollars
($7,000,000.00), dated as of the date hereof, executed by Borrowers in favor of
InterCept (the "Note"). The Loan shall be payable in accordance with the terms
of the Note. The Note, this Agreement and any other instruments and documents
executed by Borrowers or any subsidiary or affiliate of Borrowers
("Affiliates"), now or hereafter evidencing, securing or in any way related to
the indebtedness evidenced by the Note are herein individually referred to as a
"Loan Document" and collectively referred to as the "Loan Documents." The term
"Obligations" as used herein shall refer to (a) the Loan to be made concurrently
or in connection with this Agreement, as evidenced by the Note, and any renewals
or extensions thereof, (b) the full and prompt payment and performance of any
and all other indebtednesses and other obligations of Borrowers to InterCept,
direct or contingent (including
but not limited to obligations incurred as endorser, guarantor or surety),
however evidenced or denominated, and however and whenever incurred, that relate
to the Loan and (c) all future advances made by InterCept for taxes, levies,
insurance and preservation of the collateral and all attorneys' fees, court
costs and expenses of whatever kind incident to the collection of any of said
indebtedness or other obligations and the enforcement and protection of the
security interest created hereby or by the other Loan Documents. Notwithstanding
any other term or condition contained in this Agreement, the Loan Documents and
Obligations shall not include or extend to the Purchase Agreement (amended and
restated) dated November 29, 2000 between the Borrowers and InterCept (the
"Purchase Agreement"), the agreements delivered pursuant to the Purchase
Agreement including, without limitation, the Registration Rights Agreement and
Employee Services Agreement, both as may be amended from time to time, and the
obligations and liabilities of the Borrowers thereunder.
1.2 Partial Prepayment. Borrowers may prepay the indebtedness
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evidenced by the Note in whole or in part at any time and from time to time,
without penalty or premium.
1.3 Purposes of Loan and Use of Proceeds. The purposes of the
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Loan shall be as described on the Disclosure Memorandum.
Section 2. The Closing
The Closing shall take place, subject to the satisfaction or waiver of
the conditions set forth in this Agreement, at 9:00 a.m., December 3, 2001, in
the offices of InterCept. If the conditions to closing contained in this
Agreement, have not been obtained prior to 9:00 a.m. on December 3, 2001, the
Closing shall take place after such conditions have been satisfied or waived, at
a time mutually agreed upon by the parties, provided that the parties agree to
use commercially reasonable efforts to close by December 10, 2001.
Secton 3. Representations and Warranties of Borrowers
To induce InterCept to make the Loan, and in acknowledgement of
InterCept's reliance on the following representations and warranties,
Shareholder and the Company hereby represent and warrant to InterCept as follows
as of the date hereof and as of the Closing:
3.1 Organization and Authority; Validity and Binding Effect.
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(a) Shareholder is a corporation duly organized and validly
existing under the laws of the Province of Ontario, and the Company is a
corporation duly organized and validly existing under the laws of the State of
Kansas. Each of Shareholder and the Company has all requisite power and
authority, corporate or otherwise, to carry on and conduct its business as it is
now being conducted and to own or lease its properties and assets.
(b) Approval by the shareholders of Shareholder is not required to
consummate the Loan.
(c) The Disclosure Memorandum contains a copy of the true, valid and
correct Charter Documents of the Company and Shareholder in effect as of the
date hereof and as of the Closing.
(d) The execution, delivery and performance of this Agreement have been
duly and validly authorized by all necessary action, corporate or otherwise, on
the part of the Company and Shareholder required to take such action and will
not, without the giving of notice or the lapse of time, or both, (i) violate or
conflict with any of the provisions of their respective Charter Document; (ii)
violate, conflict with, or result in a breach or default under or cause
termination of any term or condition of any mortgage, indenture, contract,
license, permit, instrument, trust document, or other agreement, document or
instrument to which the Company or Shareholder is a party or by which the
Company, Shareholder, or any of their properties may be bound; (iii) violate any
Rule; or (iv) result in the creation or imposition of any Encumbrance upon any
asset of the Company or Shareholder (other than the shares of InterCept pledged
by Shareholder or agreed to be pledged by Shareholder or the Company to secure
the Loan (the "Pledged Collateral") pursuant to that certain Pledge Agreement
(the "Pledge Agreement") executed and delivered by Shareholder to InterCept
along with this Agreement).
(e) This Agreement and the other Loan Documents are the legal, valid
and binding obligations of each Borrower, enforceable against each of them in
accordance with their respective terms, subject to limitations imposed by
bankruptcy, insolvency, moratorium or other similar laws affecting the rights of
creditors generally or the application of general equitable principles.
3.2 Indebtedness and Similar Matters. Except as set forth in the
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Disclosure Memorandum, neither the Company nor Shareholder is in default with
respect to any indebtedness for borrowed money, and the making of the Loan to
the Borrowers as contemplated herein will not cause such a default to occur.
Except for the HBSC Bank performance bond in the maximum principal amount of
$100,000, neither Borrower has currently in effect a loan agreement or credit
facility with a financial institution. Both Borrowers are current in the payment
of their accounts payable.
3.3 Litigation. Except as set forth in the Disclosure Memorandum, there
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is no action, suit, investigation or proceeding involving a claim or
counterclaim of more than $500,000 pending or, to the best knowledge of the
Company or Shareholder, threatened against or affecting the Company,
Shareholder, or the assets of the Company or Shareholder before any court or by
or before any governmental body or arbitration board or tribunal, nor, to the
best knowledge of the Company or Shareholder, is there a basis for any such
action, suit, investigation or proceeding.
3.4 The Pledged Collateral.
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As of the date of this Agreement, Shareholder has good, valid and
marketable title to all of the Pledged Collateral that has been issued to date,
free and clear of any and all Encumbrances other than the restrictions on the
transfer thereof as provided in preexisting agreements with InterCept.
3.5 Value of Assets. Giving effect to the Loan, the fair market value
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of the Company's assets exceeds the Company's total liabilities, whether
accrued, absolute, contingent, or otherwise. Giving effect to the Loan, the fair
market value of Shareholder's assets exceeds Shareholder's total liabilities,
whether accrued, absolute, contingent, or otherwise. The Company's assets do not
and, immediately following the making of the Loan, will not, constitute
unreasonably small capital to carry out the Company's business as conducted or
as proposed to be conducted. Shareholder's assets do not and, immediately
following the making of the Loan, will not, constitute unreasonably small
capital to carry out Shareholder's business as conducted or as proposed to be
conducted.
3.6 Debt. The Company does not intend to, and does not believe that it
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will, incur debt or liabilities (including contingent liabilities and other
commitments) beyond its ability to pay such debt or liabilities as they mature.
Shareholder does not intend to, and does not believe that it will, incur debt or
liabilities (including contingent liabilities and other commitments) beyond its
ability to pay such debt or liabilities as they mature.
3.7 No Bankruptcy. Except as set forth in the Disclosure Memorandum, no
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petition in bankruptcy has been filed against either the Company, Shareholder or
any Affiliate of either of them during the last seven years, and neither the
Company, Shareholder nor any Affiliate of either of them in the last seven years
has ever made an assignment for the benefit of creditors or taken advantage of
any insolvency act for the benefit of debtors. Neither the Company, Shareholder,
nor any Affiliate of either of them is contemplating the filing of a petition by
it under any state or federal bankruptcy or insolvency laws. Neither the Company
nor Shareholder has any knowledge of any person contemplating the filing of any
such petition against it or an Affiliate.
3.8 Agreements. Since May 1, 2001, the Company has not entered into any
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contracts under which the Company: (a) paid $50,000 or more or committed itself
to pay $50,000 or more, or (b) received $50,000 or more or expects to receive
$50,000 or more, except for the collection of outstanding accounts receivable.
3.9 Repayment. Notwithstanding anything to the contrary herein,
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Borrowers shall prepay the Obligations upon the sale of any Pledged Collateral
in an amount equal to the lesser of (i) the net proceeds of such sale, on the
one hand, or (ii) the outstanding principal balance of the Obligations, together
with all accrued and unpaid interest and charges thereon, on the other hand,
which prepayment shall be made no later than one (1) day following the
consummation of such sale and the payment and delivery of the net proceeds.
Section 4. Representations and Warranties of InterCept
To induce Shareholder and the Company to execute, deliver and perform
this Agreement, and in acknowledgement of Shareholder's and the Company's
reliance on the following representations and warranties, InterCept hereby
represents and warrants to Shareholder and Company as follows as of the date
hereof and as of the Closing:
4.1 Organization and Authority.
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InterCept is a publicly traded corporation trading on the Nasdaq Stock
Market, and, to InterCept's best knowledge, is not in default with respect to
any of Nasdaq's listing requirements. InterCept is a corporation duly organized
and validly existing under the laws of the State of Georgia and has all
requisite power and authority, corporate or otherwise, to carry on and conduct
its business as it is now being conducted and to own or lease its properties and
assets.
4.2 No Insolvency.
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InterCept has not been and is not now (i) subject to any insolvency
related procedure in respect of part or all of its assets, or (ii) involuntarily
liquidated.
4.3 Corporate Authority; No Violation.
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The execution, delivery and performance of this Agreement, and the
making of the Loan, have been duly and validly authorized by all necessary
action, corporate or otherwise, on the part of InterCept required to take such
action and will not, with the giving of notice or the lapse of time, or both (i)
violate or conflict with any of the provisions of any its Charter Documents;
(ii) violate, conflict with or result in a breach or default under or cause
termination of any term or condition of any mortgage, indenture, contract,
license, permit, instrument, trust document, or other agreement, document or
instrument to which InterCept is a party or by which InterCept or any of its
properties may be bound; (iii) violate any Rule; or (iv) result in the creation
or imposition of any Encumbrance upon any asset of InterCept.
This Agreement and the other Loan Documents are the legal, valid and
binding obligations of InterCept, enforceable against it in accordance with
their respective terms, subject to limitations imposed by bankruptcy,
insolvency, moratorium or other similar laws affecting the rights of creditors
generally or the application of general equitable principles.
4.4 Required Consents.
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Except for approval and consent from First Union Bank and InterCept's
Board of Directors (which approvals and consents have been obtained), InterCept
is not required to obtain the consent, approval, authorization or estoppel of
any other Person to authorize and permit the making of the Loan.
4.5 Reasonable Assistance.
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InterCept agrees to provide customary and reasonable assistance to
Shareholder in its sale of shares of InterCept common stock pursuant to Rule 144
so that Shareholder may prepay the indebtedness or other amounts outstanding
pursuant to the Loan Documents in accordance with Section 3.9.
Section 5. Covenants of Borrowers
Borrowers covenant and agree, jointly and severally, that during the
term of this Agreement:
5.1 Payment of Obligations. Borrowers shall pay the indebtedness
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evidenced by the Note according to the terms thereof, and shall timely pay or
perform, as the case may be, all of the other obligations of Borrowers to
InterCept, direct or contingent, however evidenced or denominated, and however
and whenever incurred, that relate to the Loan.
5.2 Financial Statements and Reports. Shareholder shall furnish to
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InterCept (a) as soon as practicable and in any event on the earlier of (i) 140
days after the end of Shareholder's fiscal year and (ii) Shareholder's delivery
of same to its shareholders, consolidated balance sheets of Shareholder and its
Subsidiaries as of the close of such fiscal year, consolidated statements of
operations of Shareholder and its Subsidiaries for such fiscal year and
consolidated statements of cash flows for Shareholder and its Subsidiaries for
such fiscal year, prepared in accordance with Canadian generally accepted
accounting principles consistently applied and, as to such consolidated
statements, accompanied by an unqualified audit report prepared by Shareholder's
current independent auditors or other independent certified public accountants
that are recognized as one of the "Big Five" accounting firms as of the date of
this Agreement, and (b) within the earlier of (i) 60 days after the end of each
quarter and (ii) the Shareholder's delivery of same to its shareholders,
consolidated balance sheets of Shareholder and its Subsidiaries as of the close
of such quarter and consolidated statements of operations of Shareholder and its
Subsidiaries for such quarter and prepared in accordance with Canadian generally
accepted accounting principles consistently applied (except for the absence of
footnotes and subject to normal and customary year-end adjustments).
5.3 Corporate Existence. Each Borrower shall maintain its corporate
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existence and good standing in the state of its incorporation; save and except
that the Company shall be liquidated, wound up and dissolved under the
applicable Kansas corporation statutes in the manner contemplated in the
Purchase Agreement.
5.4 Notice of Default. Borrowers shall give written notice to InterCept
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of the occurrence of any default, event of default or Event of Default under
this Agreement or any other Loan Document promptly upon the occurrence thereof.
5.5 Notice of Litigation. Borrowers shall give notice, in writing, to
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InterCept of (a) any actions, suits or proceedings, instituted by any persons
whomsoever against Borrowers or affecting any of the assets of Borrowers, in
either case meeting or exceeding the threshold set forth in Section 3.3 above,
and (b) any dispute, not resolved within sixty (60) days of the commencement
thereof, between any Borrower on the one hand and any governmental regulatory
body on the other hand, which actions, suits or proceedings or dispute might
materially adversely interfere with the normal operations of any Borrower.
Section 6. Conditions to Obligations of Borrowers
The obligations of Shareholder and the Company to enter into this
Agreement shall be subject to the satisfaction (or waiver by Shareholder and the
Company) at or prior to the Closing Date of each of the following conditions:
6.1 Representations, Warranties and Covenants. Each of the
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representations and warranties of InterCept contained in this Agreement shall be
true in all respects as of the time of the Closing; and InterCept shall have
performed and complied in all respects with the respective covenants and
agreements set forth herein to be performed or complied with by it at or before
the Closing.
6.2 Litigation. No suit, investigation, action or other proceeding
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shall be pending or overtly threatened before any court or governmental agency,
which has resulted in the restraint or prohibition of Shareholder or the Company
from obtaining the Loan, or in the reasonable opinion of counsel for Shareholder
or the Company could result in the obtaining of material damages or other relief
from Shareholder or the Company, in connection with this Agreement or the
obtaining of the Loan.
6.3 [Intentionally omitted.]
6.4 Execution and Delivery of Documents. InterCept shall have executed
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and delivered all the documents required by this Agreement; and all other
agreements, certificates, and other documents delivered by InterCept to the
Company and Shareholder hereunder shall be in form and substance satisfactory to
counsel for the Company and Shareholder.
6.5 Other Necessary Consents. Shareholder and the Company shall have
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obtained all consents, approvals, and estoppels listed in the Disclosure
Memorandum.
6.6 Delivery of Documents. InterCept shall have executed and delivered
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or caused to be delivered to Shareholder the Pledge Agreement in the form
attached hereto as Exhibit 6.6(a).
Section 7. Conditions to Obligations of InterCept
The obligations of InterCept to be performed hereunder shall be subject
to the satisfaction (or waiver by InterCept) at or before the Closing of each of
the following conditions:
7.1 Representations, Warranties and Covenants. Each of the
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representations and warranties of Shareholder and the Company contained in this
Agreement shall be true in all respects as of the time of the Closing; and the
Company and Shareholder shall have performed and complied in all respects with
the respective covenants and agreements set forth herein to be performed or
complied with by them at or before the Closing.
7.2 Litigation. No suit, investigation, action or other proceeding
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shall be pending or overtly threatened before any court or governmental agency,
which has resulted in the restraint or prohibition of InterCept from making the
Loan, or in the reasonable opinion of counsel for
InterCept could result in the obtaining of material damages or other relief from
InterCept, in connection with this Agreement or the making of the Loan.
7.3 Opinions of Counsel to the Company and Shareholder. InterCept shall
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have received from counsel to Shareholder and the Company opinion letters
reasonably acceptable to InterCept.
7.4 Execution and Delivery of Documents. The Company and Shareholder
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shall have executed and delivered all the documents required herein (including
the Disclosure Memorandum); and all other agreements, certificates, and other
documents delivered by the Company and Shareholder to InterCept hereunder shall
be in form and substance satisfactory to counsel for InterCept.
7.5 Other Necessary Consents. Shareholder and the Company shall
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have obtained all consents, approvals, and estoppels necessary for the making of
the Loan, including those listed in the Disclosure Memorandum.
7.6 Delivery of Documents. The Company and Shareholder shall have
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executed and delivered or caused to be delivered to InterCept all of the
following agreements:
(a) the Note in the form attached hereto as Exhibit 7.6(a); and
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(b) Pledge Agreement in the form attached hereto as Exhibit
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6.6(a), together with the stock powers required therein.
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Section 8. Default and Remedies
8.1 Events of Default. The occurrence of any of the following shall
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constitute an Event of Default hereunder:
(a) Default in the payment of the principal of or interest on
the indebtedness evidenced by the Note in accordance with the terms of the Note,
which default is not cured within five (5) business days;
(b) Any misrepresentation by Borrowers as to any material matter
hereunder or under any of the other Loan Documents; or delivery thereunder by
Borrowers of any schedule, statement, resolution, report, certificate, notice or
writing to InterCept in respect of the Loan that is untrue in any material
respect on the date as of which the facts set forth therein are stated or
certified;
(c) Failure of either Borrower to perform any of their
obligations, covenants or agreements under this Agreement (as such Agreement may
be amended, modified or restated from time to time);
(d) Either Borrower (i) shall generally not pay or shall be
unable to pay its debts as such debts become due, or (ii) shall make an
assignment for the benefit of
creditors or petition or apply to any tribunal for the appointment of a
custodian, receiver or trustee for it or a substantial part of its assets, or
(iii) shall commence any proceeding as a debtor under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect, or (iv)
shall have had any such petition or application filed or any such proceeding
commenced against it that is not dismissed within ninety (90) days, or (v) shall
indicate, by any act or intentional and purposeful omission, its consent to,
approval of or acquiescence in any such petition, application, proceeding or
order for relief or the appointment of a custodian, receiver or trustee for it
or a substantial part of its assets, or (vi) shall suffer any such
custodianship, receivership or trusteeship to continue undischarged for a period
of ninety (90) days or more;
(e) Either Borrower shall be liquidated, dissolved, partitioned,
or terminated, or its charter shall expire or be revoked; save and except for
the liquidation, winding up and dissolution of the Company under applicable
Kansas corporation statutes pursuant to the Purchase Agreement; and
(f) A default or event of default shall occur under any of the
other Loan Documents and, if subject to a cure right, such default or event of
default shall not be cured within the applicable cure period.
With respect to any Event of Default described above that is capable of
being cured and that does not already provide its own cure procedure (a "Curable
Default"), the occurrence of such Curable Default shall not constitute an Event
of Default hereunder if such Curable Default is fully cured and/or corrected
within thirty (30) days (provided that there shall be no cure period if such
Curable Default can be cured by payment of a sum of money) after notice thereof
to Borrowers given in accordance with the provisions hereof; provided, however,
that this provision shall not require notice to Borrowers and an opportunity to
cure any Curable Default of which any Borrower has had actual knowledge for the
requisite number of days set forth.
8.2 Acceleration of Maturity; Remedies. Upon the occurrence of any
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Event of Default described in subsection 8.1(d), the indebtedness evidenced by
the Note shall be immediately due and payable in full; and upon the occurrence
of, and during the continuance of, any other Event of Default described above,
InterCept at any time may at its option accelerate the maturity of the
indebtedness evidenced by the Note, all without notice of any kind. Upon the
occurrence of any such Event of Default and the acceleration of the maturity of
the indebtedness evidenced by the Note:
(a) InterCept shall be immediately entitled to exercise any and
all rights and remedies possessed by InterCept pursuant to the terms of the Note
and all of the other Loan Documents; and
(b) InterCept shall have any and all other rights and remedies
that InterCept may now or hereafter possess at law, in equity or by statute.
Notwithstanding any other term contained in this Agreement, the Note, the Pledge
Agreement or the Loan Documents, InterCept's remedies against the Borrowers with
respect to the Obligations shall be limited solely to the Pledged Collateral.
8.3 Remedies Cumulative; No Waiver. No right, power or remedy conferred
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upon or reserved to InterCept by this Agreement or any of the other Loan
Documents is intended to be exclusive of any other right, power or remedy, but
each and every such right, power and remedy shall be cumulative and concurrent
and shall be in addition to any other right, power and remedy given hereunder,
under any of the other Loan Documents or now or hereafter existing at law, in
equity or by statute. No delay or omission by InterCept to exercise any right,
power or remedy accruing upon the occurrence of any Event of Default shall
exhaust or impair any such right, power or remedy or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein, and every right,
power and remedy given by this Agreement and the other Loan Documents to
InterCept may be exercised from time to time and as often as may be deemed
expedient by InterCept.
8.4 Proceeds of Remedies. Any or all proceeds resulting from the
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exercise of any or all of the foregoing remedies shall be applied as set
forth below:
First, to the costs and expenses, including without limitation
reasonable attorneys' fees and disbursements, incurred by InterCept in
connection with the exercise of its remedies;
Second, to the expenses of curing the default that has occurred,
in the event that InterCept elects, in its sole discretion, to cure
the default that has occurred;
Third, to the payment of the Obligations of Borrowers, including
but not limited to the payment of the principal of and interest on the
indebtedness evidenced by the Note, in such order of priority as
InterCept shall determine in its sole discretion; and
Fourth, the remainder, if any, to Borrowers or to any other
person lawfully thereunto entitled.
Section 9. Termination
This Agreement shall remain in full force and effect until the payment
in full by Borrowers of the Obligations, at which time InterCept shall cancel
the Note and deliver it to Borrowers; provided, however, that the indemnity
provided below shall survive the termination of this Agreement.
Section 10. Miscellaneous
10.1 Notices. All notices, requests, demands, consents and other
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communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered by overnight courier or express
mail service or by postage pre-paid certified or registered mail, return receipt
requested (the return receipt constituting prima facie evidence of
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the giving of such notice, request, demand or other communication), by personal
delivery, or by fax with confirmation of receipt to the following address or
such other address of which a party subsequently may give notice to all the
other parties:
To the Company
or Shareholder: SLMsoft.com Inc.
1 Yorkdale Road, Suite 600
Toronto, Ontario M6A 3A1
Attention: Dev Misir
Fax No. (416) 789-9078
With a copy to:
Gowling, Lafleur & Henderson LLP
Suite 4900
Commerce Court West
Toronto, Ontario M5L 1J3
Attention: Howie C. Wong
Fax No. (416) 862-7661
To InterCept: The InterCept Group, Inc.
3150 Holcomb Bridge Road, Suite 200
Norcross, GA 30071
Attention: John Collins and Scott R. Meyerhoff
Fax: (770) 840-2521
and
Nelson Mullins Riley & Scarborough, L.L.P.
First Union Building, Suite 1400
999 Peachtree Street
Atlanta, Georgia 30309
Attention: Charles D. Vaughn, Esq.
Fax: (404) 817-6150
10.2 Parties Bound by Agreement; Successors and Assigns. This
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Agreement, and the terms, covenants and conditions hereof, shall be binding upon
and inure to the benefit of InterCept and to all holders of the indebtedness
secured hereby and their respective successors and permitted assigns and to the
Borrowers and the Borrowers' successors, legal representatives and assigns,
except that the Borrowers shall not be permitted to assign this Agreement or any
interest herein or in the Pledged Collateral, or any part thereof (except as
permitted under the terms of this Agreement), or any cash or property held by
InterCept as collateral under this Agreement. InterCept shall only assign all or
a portion of its rights and obligations hereunder and under the other Loan
Documents either (a) in connection with a Corporate Restructuring, or (b) if
consented to by Shareholder in writing, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, Shareholder consents to and
acknowledges that InterCept will be
collaterally assigning to First Union National Bank all of its rights and
remedies with respect to this Agreement, the Note and the other Loan Documents
pursuant to the Collateral Assignment. InterCept may, in connection with any
assignment or proposed assignment, disclose to the assignee or proposed
participant any information relating to the Borrowers furnished to InterCept by
or on behalf of the Borrowers. Furthermore, the Borrowers acknowledge that
InterCept will be providing information relating to the Borrowers furnished to
InterCept by or on behalf of the Borrowers to First Union National Bank on a
regular basis. No notice to or demand on the Borrowers shall entitle the
Borrowers to any other or further notice or demand in the same, similar or other
circumstances.
10.3 Entire Agreement. This Agreement, the Disclosure Memorandum and
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all other certificates, schedules and other documents delivered pursuant to this
Agreement constitute the entire agreement between the parties with respect to
the Loan, and supersede and are in full substitution of any and all prior
agreements and understandings, both oral and written, between the parties
relating to such transaction.
In the event of any conflict between the terms of this Agreement, on
the one hand, and the terms of the Note, the Pledge Agreement and the other Loan
Documents, on the other hand, then this Agreement shall be paramount and prevail
to the extent of the conflict.
10.4 Descriptive Headings. The descriptive headings of the
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Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
10.5 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. Receipt of a facsimile version of an executed
signature page by a party to this Agreement shall constitute satisfactory
evidence of execution of this Agreement by such party.
10.6 Amendments and Waivers. No modification, termination, extension,
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renewal, or waiver of any provision of this Agreement shall be binding upon a
party unless made in writing and signed by such party. A waiver on one occasion
shall not be construed as a waiver of any right on any future occasion. No delay
or omission by a party in exercising any of its rights hereunder shall operate
as a waiver of such rights.
10.7 Governing Law, Jurisdiction and Venue. This Agreement is executed
-------------------------------------
by InterCept in, and shall be construed in accordance with and governed by the
laws of the State of Georgia, without regard to its conflict of law principles.
Shareholder consents to exclusive jurisdiction by the state and federal courts
sitting in Fulton County in the State of Georgia.
10.8 No Third-Party Beneficiaries. With the exception of the parties to
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this Agreement and the Indemnified Persons, there shall exist no right of any
person to claim a beneficial interest in this Agreement or any rights accruing
by virtue of this Agreement.
10.9 Gender and Number. Where the context requires, the use of a
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pronoun of one gender or the neuter is to be deemed to include a pronoun of the
appropriate gender, singular words are to be deemed to include the plural, and
vice versa.
10.10 Expenses. Each of the expenses incurred by InterCept, the Company
--------
and Shareholder in connection with the authorization, preparation, execution and
performance of this Agreement, including without limitation all fees,
commissions, and expenses of agents, representatives, counsel, accountants,
investment bankers, brokers and finders, shall be paid by the party that
incurred such expenses.
10.11 Survival of Warranties. The respective representations and
----------------------
warranties of the Company, Shareholder and InterCept under this Agreement shall
not merge, but will survive the Closing for the earlier of a period of two years
and the termination of this Agreement.
10.12 Indemnification.
---------------
(a) By Shareholder and the Company. For a period of two years
------------------------------
following the Closing Date, Shareholder and the Company shall jointly and
severally indemnify, reimburse and hold harmless InterCept, its Affiliates and
any successor or assigns (the "Indemnified Persons") for any and all direct or
---------------------
indirect claims, losses, liabilities (actual or contingent), damages (including
special and consequential damages), costs (including court costs) and expenses
(including all attorneys' and accountants' fees and expenses) (hereinafter a
"Loss" or "Losses"), as a result of or in connection with (i) any breach,
- ------ --------
inaccuracy or untruth of any warranty or covenant by Shareholder or the Company
contained in this Agreement, whether such breach, inaccuracy or untruth exists
or is made on the date of this Agreement or as of the Closing, or (ii) any fees,
commissions or expenses of any broker or finder engaged by the Company or
Shareholder in connection with the Loan or this Agreement or any other Loan
Document.
(b) Limitations with Respect to Minimum Amount. Neither
------------------------------------------
Shareholder nor the Company shall have liability (for indemnification or
otherwise) to InterCept with respect to the matters described in this Section
10.12 unless and until the total of all damages incurred by the Indemnified
Persons with respect to such matters exceeds $50,000. The indemnification
obligations of Shareholder and the Company shall be subject to the survival
limitations set forth in Section 10.11, after which time, if no Losses have been
asserted against a party, then that party shall have no further liability
hereunder.
(c) Notification. InterCept hereby undertakes to notify
------------
Shareholder without delay of the occurrence of any event that constitutes or may
with the passage of time constitute an event entitling any Indemnified Person to
indemnification under this Section.
(d) Notice of Claim. To seek indemnification hereunder, an
---------------
Indemnified Person shall notify the Borrowers of any claim for indemnification,
specifying in reasonable detail the nature of the Loss and the amount or an
estimate of the amount thereof.
(e) Litigation Assumption. The party against whom indemnity is
---------------------
being sought by the Indemnified Person shall have the right to assume the
litigation, defense and settlement, as
the case may be, of a purported Loss which arises from a claim from a third
party and the Indemnified Person shall co-operate with the party in such
litigation, defense and settlement, as the case may be.
10.13 No Public Announcements. Prior to Closing, without the prior
-----------------------
written consent of the other parties, neither InterCept, Shareholder, nor the
Company shall make any press release or other public disclosure, or make any
statement to any customer, supplier, employee or other person with regard to the
Loan, except as required by law. After Closing, without the prior written
consent of each other, neither InterCept nor Shareholder or the Company shall
make any press release or other public disclosure with regard to the Loan,
except as required by law or applicable SEC or Canadian securities laws. Both
parties acknowledge that InterCept shall file a Form 8-K with the Securities and
Exchange Commission describing the transactions contemplated by the Loan
Documents, and that the Shareholder shall file a Material Change Report with the
Canadian securities regulators.
10.14 Time of the Essence. Time is of the essence with respect to each
-------------------
and every covenant, agreement, and obligation of Borrowers hereunder and under
all of the other Loan Documents.
10.15 Severability. If any provision(s) of this Agreement or the
------------
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
10.16 Interest and Loan Charges Not to Exceed Maximum Allowed by Law.
--------------------------------------------------------------
This Agreement, the Note and the other Loan Documents are expressly limited so
that in no event whatsoever, whether by reason of advancement of proceeds of the
Loan, acceleration of the maturity of the unpaid balance of the Loan or
otherwise, shall the amount paid or agreed to be paid to InterCept for the use
of the money advanced or to be advanced hereunder exceed the maximum rate
permitted by law (the "Maximum Rate"). If, for any circumstances whatsoever, the
fulfillment of any provision of this Agreement, the Note or the other Loan
Documents now or hereafter evidencing, securing or in any way relating to the
debt evidenced by the Note shall involve the payment of interest in excess of
the Maximum Rate, then, ipso facto, the obligation to pay interest under the
Note shall be reduced to the Maximum Rate; and if for any circumstance
whatsoever, InterCept shall ever receive interest, the amount of which would
exceed the amount collectible at the Maximum Rate, such amount as would be
excessive interest shall be applied to the reduction of the principal balance
remaining unpaid hereunder and not to the payment of interest.
10.17 Construction and Interpretation. Should any provision of this
-------------------------------
Agreement require judicial interpretation, the parties hereto agree that the
court interpreting or construing the same shall not apply a presumption that the
terms hereof shall be more strictly construed against one party by reason of the
rule of construction that a document is to be more strictly construed against
the party that itself or through its agent prepared the same, it being agreed
that Borrowers, InterCept and their respective agents have participated in the
preparation hereof.
10.18 Pledged Collateral Remains Restricted Under Purchase Agreement.
--------------------------------------------------------------
Under the Purchase Agreement, InterCept issued shares of InterCept Common Stock
to Shareholder and the Company in a transaction exempt from registration under
the Securities Act of 1933 by reason of Section 4(2) thereof, Regulation D
promulgated thereunder, or other private offering exemptions, as well as an
appropriate exemption under the Canadian National Territorial Provincial Rule.
Under the Purchase Agreement, a specified legend was placed on the certificates
evidencing the shares issued at the closing of the Purchase Agreement and will
be placed on up to 385,872 shares to be earned by and issued to Shareholder, as
nominee for the Company, subject to the terms and conditions set forth in the
Purchase Agreement. Notwithstanding any other discussions or correspondence
among the parties hereto, they reaffirm their mutual understanding and agreement
that placing the legend on all share certificates issued under the Purchase
Agreement is necessary and appropriate until such legends are eligible to be
removed either pursuant to registration of such shares or the availability of an
exemption for the transfer of such shares.
10.19 Definitions. For purposes of this Agreement, the following
-----------
terms shall have the following meanings:
"Affiliates" of a particular Person means other Persons controlled by,
------------
controlling, or under common control with, such Person.
"Charter Documents" means the articles of incorporation and bylaws of
-------------------
the Company, Shareholder, or InterCept, as the context requires.
"Closing" means the consummation of the making of the Loan under the
---------
terms of this Agreement.
"Closing Date" means the date on which the Closing occurs.
--------------
"Collateral Assignment" means the Collateral Assignment of Rights under
-----------------------
SLM Loan Documents between InterCept and First Union National Bank dated
December __, 2001.
"Corporate Restructuring" means (a) that InterCept or an affiliated
-------------------------
subsidiary of InterCept is a party to a merger, consolidation, spin-off,
corporate reorganization, or corporate restructuring, (b) the sale, transfer,
conveyance, or lease by InterCept of all or any substantial part of InterCept's
assets taken as a whole including the assets of InterCept's subsidiaries, or (c)
any transaction of InterCept that results in a majority of InterCept's directors
immediately subsequent to such transaction being individuals who were not
directors of InterCept immediately prior to such transaction.
"Disclosure Memorandum" means the memorandum signed and delivered by
-----------------------
Shareholder and the Company on the Closing Date containing information required
to be disclosed under this Agreement.
"Encumbrance" means any mortgage, charge (whether fixed or floating),
-------------
security interest, pledge, claim, right of first refusal, lien (including,
without limitation any unpaid vendor's lien),
option,
option, hypothecation, title retention or conditional sale agreement, lease,
option, restriction as to transfer, use or possession, easement, subordination
to any right of any other person, and any other encumbrance on the absolute and
unfettered use and ownership of any asset or property.
"Person" means a corporation, partnership, trust, limited liability
--------
company, other business entity or an individual.
"Rule" means any law, statute, rule, regulation, order, court decision,
------
judgment or decree of any federal, state, territorial, provincial or municipal
authority or body, and, when it is commonly proper to follow them,
non-compulsory recommendations of any such public authorities and bodies.
"Subsidiary" means any commercial company or other business entity
------------
controlled by Shareholder or the Company or any subsidiary of the Company,
including any entity (whether or not deemed to have an independent legal
personality) in which the shareholder's liability is not limited to its
contribution.
Each of the parties hereto has caused this Loan Agreement to be duly
executed on its behalf as of the date indicated on the first page hereof and
this Loan Agreement has been delivered on December 3, 2001.
INTERCEPT:
THE INTERCEPT GROUP, INC., a Georgia corporation
By: /s/ Scott R. Meyerhoff
------------------------------------------------
Name: Scott R. Meyerhoff
Title: Chief Financial Officer
SHAREHOLDER:
SLMSOFT.COM INC., a corporation formed under the laws of the Province of Ontario
By: /s/ Dev Misir
--------------------------------------------------
Name: Dev Misir
Title: Chief Financial Officer and Executive Vice President
THE COMPANY:
SLMSOFT.COM INC., a Kansas corporation
By: /s/ Dev Misir
--------------------------------------------------
Name: Dev Misir
Title:Chief Financial Officer and Executive Vice President