EXHIBIT 10.31
AGREEMENT
THIS AGREEMENT (this "Agreement") dated as of February 14, 2005 to the
Credit Agreement referenced below is among IPAYMENT, INC., a Delaware
corporation (the "Borrower"), the Guarantors identified on the signature pages
hereto (the "Guarantors"), BANK OF AMERICA, N.A. (the "Bank of America"),
JPMORGAN CHASE BANK, N.A. ("JPMORGAN") and BANK OF AMERICA, N.A., as
Administrative Agent.
WITNESSETH
WHEREAS, a $180 million revolving credit facility has been extended to
the Borrower pursuant to the Amended and Restated Credit Agreement (as amended,
modified and supplemented from time to time, the "Credit Agreement") dated as of
December 28, 2004 among the Borrower, the Guarantors, the Lenders identified
therein and the Administrative Agent;
WHEREAS, pursuant to Section 2.01(b) of the Credit Agreement, the
Borrower has the right to increase the Aggregate Revolving Commitments by up to
$100 million with new Revolving Commitments from any existing Lender or new
Revolving Commitments from any other Person that qualifies as an Eligible
Assignee; and
WHEREAS, at the request of the Borrower, each of Bank of America and
JPMorgan has agreed to increase its Revolving Commitment pursuant to Section
2.01(b) of the Credit Agreement on the terms set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein but not defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
2. Increase in Revolving Commitment.
(a) Bank of America agrees that its Revolving Commitment is
increased by $17.0 million from $25.5 million to $42.5 million.
(b) JPMorgan agrees that its Revolving Commitment is increased
by $8.0 million from $22.0 million to $30.0 million.
(c) The Borrower and the Guarantors (i) acknowledge and accept
the additional Revolving Commitments provided by Bank of America and
JPMorgan herein and (ii) agree that such additional Revolving
Commitments shall be deemed Revolving Commitments for all purposes of
the Loan Documents and shall be subject to all of the terms, conditions
and other provisions of the Credit Agreement and the other Loan
Documents.
3. Conditions Precedent. This Agreement shall be effective as of the
date hereof upon satisfaction of each of the following conditions precedent:
(a) receipt by the Administrative Agent of this Agreement
executed by the Borrower, the Guarantors, Bank of America, JPMorgan and
the Administrative Agent;
(b) receipt by the Administrative Agent of all fees owing
under the Fee Letters in connection with this Agreement; and
(c) the effectiveness of (i) the Assignment and Assumption
dated as of the date hereof among Bank of America, as assignor, and the
assignees identified therein, and (ii) the Assignment and Assumption
dated as of the date hereof among JPMorgan, as assignor, and the
assignees identified therein.
4. Covenant. The Borrower covenants and agrees to deliver to the
Administrative Agent within five (5) Business Days following the date hereof of
resolutions of the board of directors (or its equivalent) of each Loan Party
approving this Agreement and the execution hereof, certified by the secretary of
each Loan Party as being in full force and effect on the date hereof.
5. Reaffirmation of Guaranty. Each Guarantor (a) acknowledges and
consents to all of the terms and conditions of this Agreement, (b) agrees that
this Agreement and all documents executed in connection herewith do not operate
to reduce or discharge such Guarantor's obligations under the Loan Documents and
(c) agrees that this Agreement shall in no manner impair or otherwise adversely
effect any of the Liens granted in or pursuant to the Loan Documents.
6. Reaffirmation of Security Interests. The Borrower and each Guarantor
(i) affirms that each of the Liens granted in or pursuant to the Loan Documents
are valid and subsisting and (ii) agrees that this Amendment shall in no manner
impair or otherwise adversely effect any of the Liens granted in or pursuant to
the Loan Documents.
7. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute one contract.
8. Governing Law. This Agreement shall be deemed to be a contract made
under, and for all purposes shall be construed in accordance with the laws of
the State of New York.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their officers thereunto duly authorized as of the date hereof.
BORROWER: IPAYMENT, INC.,
-------- a Delaware corporation
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
GUARANTORS: iPAYMENT OF CALIFORNIA, LLC,
---------- a Tennessee limited liability company
1ST NATIONAL PROCESSING, INC.,
a Nevada corporation
E-COMMERCE EXCHANGE, INC.,
a Delaware corporation
ONLINE DATA CORP.,
a Delaware corporation
iPAYMENT OF MAINE, INC.,
a Delaware corporation
CARDSYNC PROCESSING, INC.,
a California corporation
QUAD CITY ACQUISITION SUB, INC.,
a Delaware corporation
CARDPAYMENT SOLUTIONS, L.L.C.,
a Delaware limited liability company
iPAYMENT ACQUISITION SUB LLC,
a Delaware limited liability company
TS ACQUISITION SUB LLC,
a Delaware limited liability company
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Financial Officer of each
of the foregoing
[SIGNATURE PAGES CONTINUE]
BANK OF AMERICA: BANK OF AMERICA, N.A.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
JPMORGAN: JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Director
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
