EXHIBIT 10.1
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made and entered into as of this ___ day of May, 2006, by and
among PRIVATE BUSINESS, INC., a Tennessee corporation, as borrower (the
"Borrower"), BANK OF AMERICA, N.A., a national banking association, as a lender
("Bank of America") and the Majority Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower and Lender are parties to that certain Amended
and Restated Credit Agreement, dated as of January 23, 2006, as amended by that
certain First Amendment thereto, dated as of February 17, 2006, and by that
certain Second Amendment thereto dated as of April 5, 2006 (as so amended, and
as may be further amended from time to time, the "Credit Agreement"), pursuant
to which the Lender extended certain financial accommodations to the Borrower;
and
WHEREAS, the Borrower has requested that the Lender, and the Lender has
agreed to, subject to the terms hereof, amend certain provisions of the Credit
Agreement as more fully set forth herein; and
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.
(a) Section 6.12 of the Credit Agreement is hereby amended by
deleting the final sentence of subsection (a) thereof and by substituting in
lieu thereof the following:
"This ratio will be calculated (x) at the end of each fiscal quarter
for which this Agreement requires Borrower to deliver financial
statements, using the results of the twelve-month period ending with
that fiscal quarter and after giving pro forma effect to any
Acquisition made during such period (provided however, that the
quarterly EBITDA of Goldleaf Technologies, Inc. for the second, third
and fourth quarter of 2005 and the first quarter of 2006 shall be
deemed to be $770,608, $545,653, $568,180, and $196,839, respectively,
for the purposes of this ratio) and (y) on the date of any Credit
Extension, using EBITDA for the most recent period and Funded Debt
after giving pro forma effect to such Credit Extension."
(b) Section 6.18 of the Credit Agreement is hereby amended by
deleting such section in its entirety and replacing it with the following:
"Section 6.18 Key Man Life Insurance. By no later than June
14, 2006, Borrower shall obtain (and provide evidence thereof to
Lender) key man life insurance with respect to Xxxx Xxxxx in an
aggregate amount of not less than Five Million Dollars ($5,000,000)."
3. COVENANTS, REPRESENTATIONS AND WARRANTIES.
(a) The Borrower hereby agrees that it will use commercially
reasonable efforts to obtain a duly executed counterpart of this Agreement from
The Lightyear Fund, L.P. promptly after the date hereof, and deliver same to
Bank of America. The Borrower agrees that any failure to comply with the
covenants set forth in this Section 4.1(a) shall constitute an immediate Event
of Default for all purposes under the Credit Agreement at the time of such
failure.
(b) The Borrower hereby represents and warrants to and in favor of
the Lender as follows:
(i) each representation and warranty set forth in Article 3 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 (A) previously fulfilled in accordance
with the terms of the Credit Agreement, as amended hereby, (B) the
Borrower has provided the Lender updates to information provided to the
Lender in accordance with the terms of such representations and
warranties, or (C) relating specifically to the Closing Date or
otherwise inapplicable;
(ii) the Borrower and each Guarantor has the corporate power
and authority (A) to enter into this Amendment, and (B) to do all acts
and things as are required or contemplated hereunder to be done,
observed and performed by it;
(iii) 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: (A) 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 (B) 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);
(iv) 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
-2-
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
(v) 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 Bank of America's receipt of
Majority Lenders' and Borrower's signature pages to 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 or Lightyear 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 "Secured Obligations" under each of the Guarantees,
as the case may be, in respect of the Secured 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 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
-3-
amended hereby. The terms of this Amendment are not intended to and do not serve
as a novation as to the Credit Agreement or the 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. 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]
-4-
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
under seal as of the day and year first above written.
PRIVATE BUSINESS, INC.,
as Borrower
By: /s/ J. Xxxxx Xxxxxxxxx
---------------------------------------
Name: J. Xxxxx Xxxxxxxxx
----------------------------------
Title: Chief Financial Officer
--------------------------------
BANK OF AMERICA, N.A.,
as Lender
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: Senior Vice President
--------------------------------
FIRST HORIZON BANK,
as Lender
By: /s/ R. Xxxxxxx Xxxxxx
---------------------------------------
Name: R. Xxxxxxx Xxxxxx
----------------------------------
Title: Senior Vice President
--------------------------------
THE PEOPLES BANK,
as Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
----------------------------------
Title: Banking Officer
--------------------------------
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE 1 of 3 (9301894)
ACKNOWLEDGED AND CONSENTED
TO BY THE FOLLOWING GUARANTORS:
PRIVATE BUSINESS INSURANCE, LLC
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
----------------------------------
Title: General Counsel and Secretary
--------------------------------
FORSEON CORPORATION
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
----------------------------------
Title: General Counsel and Secretary
--------------------------------
TOWNE SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
----------------------------------
Title: General Counsel and Secretary
--------------------------------
KVI CAPITAL, LLC
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
----------------------------------
Title: General Counsel and Secretary
--------------------------------
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE 2 of 3 (9301894)
CAPTIVA FINANCIAL SOLUTIONS, LLC
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
----------------------------------
Title: General Counsel and Secretary
--------------------------------
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE 3 of 3 (9301894)
ACKNOWLEDGED AND CONSENTED
TO BY THE FOLLOWING GUARANTOR:
THE LIGHTYEAR FUND, L.P.
By: /s/ Xxxxxxx Kacini
---------------------------------------
Name: Xxxxxxx Kacini
----------------------------------
Title: Vice President
--------------------------------
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE
