EXHIBIT 10.4.5
AMENDMENT NO. 5 TO CREDIT AGREEMENT
AMENDMENT NO. 5, dated as of October 5, 2001 (this "Amendment")
to Credit Agreement, by and among Private Business, Inc., a Tennessee
corporation (the "Borrower"), the Lenders and Fleet National Bank, as the
Initial Issuing Bank, the Swing Line Bank and the Administrative Agent.
PRELIMINARY STATEMENTS
(A) The Borrower, the Lenders and Fleet National Bank, as the
Initial Issuing Bank, the Swing Line Bank and the Administrative Agent, are
parties to the Credit Agreement, dated as of August 7, 1998 (as amended to the
date hereof, the "Credit Agreement").
(B) The Borrower has requested that the Administrative Agent and
Lenders extend the time period set forth in Amendment No. 4 to Credit Agreement,
dated as of June 30, 2001 ("Amendment No. 4"), for the execution and delivery of
a Mortgage with respect to each parcel of real property owned by the Borrower or
any of its Subsidiaries as more fully set forth below and the Administrative
Agent and the Lenders are willing to do so on the terms and conditions set forth
herein.
(C) The terms defined in the Credit Agreement and not otherwise
defined herein shall have the meanings ascribed to them in the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
ARTICLE 1. Amendment to Credit Agreement.
Section 6.1(d) of Amendment No. 4 is amended by deleting the words "60
days" and replacing them with the words "120 days".
ARTICLE 2. Confirmations and References.
Section 2.1. Continuing Effect. The Credit Agreement and the other Loan
Documents delivered in connection therewith are, and shall continue to be, in
full force and effect, and are hereby ratified and confirmed in all respects,
except that, on and after the date hereof, (a) all references in the Loan
Documents (i) to the "Credit Agreement," "thereto," "thereof," "thereunder" or
words of like import referring to the Credit Agreement shall mean the Credit
Agreement as amended hereby and (ii) to the "Loan Documents" shall be deemed to
include this Amendment; and (b) all references in the Credit Agreement to "this
Agreement," "hereto," "hereof," "hereunder" or words of like import referring to
the Credit Agreement shall mean the Credit Agreement as amended hereby.
Section 2.2. Confirmation of Liens. The Liens granted pursuant to the
Collateral Documents secure, without limitation, the Obligations of the Borrower
and its Subsidiaries to the Lenders and the Administrative Agent under the
Credit Agreement as amended by this Amendment. The term "Obligations" as used in
the Collateral Documents (or any other term used therein to refer to the
liabilities and obligations of the Borrower and its Subsidiaries to the
Lenders and the Administrative Agent), include, without limitation, Obligations
to the Lenders and the Administrative Agent under the Credit Agreement as
amended by this Amendment.
Section 2.3. Amendment. This Amendment shall be deemed to be an
amendment to the Credit Agreement and shall not be construed in any way as a
replacement or substitution therefor. All of the terms and conditions of, and
terms defined in, this Amendment are hereby incorporated by reference into the
Credit Agreement as if such terms and provisions were set forth in full therein.
ARTICLE 3. Condition to Amendment.
The effectiveness of the amendment contained in Article 1 shall be
subject to the fulfillment of the following condition precedent: the Borrower,
the Required Lenders and Revolving Credit Lenders holding greater than 50% of
the aggregate Revolving Credit Commitments shall have executed and delivered to
the Administrative Agent this Amendment.
ARTICLE 4. Miscellaneous.
Section 4.1. Continued Effectiveness. Except as specifically amended
herein, the Credit Agreement and each of the other Loan Documents shall remain
in full force and effect in accordance with their respective terms.
Section 4.2. Governing Law. This Amendment shall be governed and
construed in accordance with the laws of the State of New York.
Section 4.3. Severability. The provisions of this Amendment are
severable, and if any clause or provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction and shall not in any manner affect such clause or provision in
any other jurisdiction, or any other clause or provision in this Amendment in
any jurisdiction.
Section 4.4. Counterparts. This Amendment may be signed in any number of
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument. Delivery of an executed counterpart of this Amendment
by facsimile shall be as effective as delivery of an originally executed
counterpart.
Section 4.5. Binding Effect; Assignment. This Amendment shall be binding
upon and inure to the benefit of the Borrower and its respective successors and
to the benefit of the Administrative Agent and the Lenders and their respective
successors and assigns. The rights and obligations of the Borrower under this
Amendment shall not be assigned or delegated without the prior written consent
of the Lenders, and any purported assignment or delegation without such consent
shall be void.
Section 4.6. Expenses. The Borrower shall pay the Administrative Agent
upon demand for all reasonable expenses, including reasonable fees of counsel
for the Administrative Agent, incurred by the Administrative Agent in connection
with the preparation, negotiation and execution of this Amendment and any
documents required to be furnished herewith.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized on the date
first above written.
PRIVATE BUSINESS, INC.,
AS BORROWER
By: /s/ Xxxx X. Read
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Title: Chief Financial Officer
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ACKNOWLEDGED AND CONSENTED TO:
PRIVATE BUSINESS INSURANCE, INC.
PRIVATE BUSINESS CAPITAL, INC.
PRIVATE BUSINESS PROCESSING, INC.
TOWNE SERVICES, INC.
BANKING SOLUTIONS, INC.
BSI ACQUISITION CORP.
IMAGING INSTITUTE, INC.
FORSEON CORPORATION
By: /s/ Xxxx X. Read
-------------------------
Title: Chief Financial Officer
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[PRIVATE BUSINESS, INC. - AMENDMENT NO. 5 TO CREDIT AGREEMENT]
FLEET NATIONAL BANK,
AS INITIAL ISSUING BANK,
AS SWING LINE BANK,
AS ADMINISTRATIVE AGENT AND
AS LENDER
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Director
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[PRIVATE BUSINESS, INC. - AMENDMENT NO. 5 TO CREDIT AGREEMENT]
CITIZENS BANK OF MASSACHUSETTS,
AS LENDER
By:
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Title:
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[PRIVATE BUSINESS, INC. - AMENDMENT NO. 5 TO CREDIT AGREEMENT]
PILGRIM PRIME RATE TRUST,
AS LENDER
By: Pilgrim Investments, Inc.,
as its Investment Manager
By:
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Title:
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[PRIVATE BUSINESS, INC. - AMENDMENT NO. 5 TO CREDIT AGREEMENT]
LASALLE BANK NATIONAL ASSOCIATION,
AS LENDER
By: /s/ Xxxx Xxxxxxxxx
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Title: Assistant Vice President
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[PRIVATE BUSINESS, INC. - AMENDMENT NO. 5 TO CREDIT AGREEMENT]
CREDIT LYONNAIS NEW YORK BRANCH,
AS LENDER
By:
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Title:
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[PRIVATE BUSINESS, INC. - AMENDMENT NO. 5 TO CREDIT AGREEMENT]
