1
EXHIBIT 10.4.2
AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT NO. 2, dated as of December 31, 1999 (this
"Amendment") to Credit Agreement, by and among Private Business, Inc., a
Tennessee corporation (the "Borrower", the Lenders, Fleet National Bank, as the
Initial Issuing Bank, the Swing Line Bank and the Administrative Agent, and
BankBoston N.A., as Syndication Agent.
PRELIMINARY STATEMENTS
(A) The Borrower, the Lenders, Fleet National Bank, as the
Initial Issuing Bank, the Swing Line Bank and the Administrative Agent, and
BankBoston N.A., as Syndication Agent, are parties to the Credit Agreement,
dated as of August 7, 1998 (the "Credit Agreement"),
(B) The Borrower has requested that the Lenders amend the
Credit Agreement as more fully set forth below,
(C) The Administrative Agent and the Lenders are willing to
amend the Credit Agreement on the terms and conditions set forth herein; and
(D) 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. Amendments to Credit Agreement.
Section 1.1 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.
Section 1.2 Amendments to Credit Agreement. Effective upon the
satisfaction of the conditions precedent set forth in Article 4 hereof, the
Credit Agreement is hereby amended as follows:
(a) Section 6.17 of the Credit Agreement is amended by
deleting such Section in its entirety and replacing it with the following:
"SECTION 6.17 Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause the aggregate of
all such Capital Expenditures made by the Borrower and its Subsidiaries in any
period set forth below to exceed the amount set forth below for such period.
2
Period Amount
------ ------
Closing Date through December 31, 1998 $3,000,000
Fiscal Year 1999 $3,500,000
Fiscal Year 2000 $8,000,000
Fiscal Year 2001 $4,000,000
Fiscal Year 2002 $4,000,000
Fiscal Year 2003 $4,000,000
Fiscal Year 2004 $4,000,000
Fiscal Year 2005 $4,000,000
Fiscal Year 2006 $4,000,000
; provided, however, that amounts permitted to be expended in a Fiscal Year
that are not expended in such fiscal year, but not in excess of fifty (50%)
percent of such prior year's unused amount (not including any amount permitted
to be carried forward from a prior year) shall be permitted to be expended in
(but only in) the subsequent fiscal year."
(b) Section 8.1 of the Credit Agreement is amended by deleting
such Section in its entirety and replacing it with the following:
"SECTION 8.1. Minimum EBITDA. Maintain for each period set
forth below EBITDA at not less than the respective amounts set forth below:
Four Fiscal Quarters ending on or about: Minimum EBITDA
---------------------------------------- ---------------
December 31, 1998 $20,000,000
March 31, 1999 $18,000,000
June 30, 1999 $17,000,000
September 30, 1999 $17,000,000
December 31, 1999 $14,000,000
March 31, 2000 $12,000,000
June 30, 2000 $12,500,000
September 30, 2000 $13,500,000
December 31, 2000 $15,500,000
March 31, 2001 $21,000,000
June 30, 2001 $21,500,000
September 30, 2001 $22,000,000
December 31, 2001 $22,500,000
March 31, 2002 $23,000,000
June 30, 2002 $23,500,000
September 30, 2002 $24,000,000
December 31, 2002 $25,000,000
March 31, 2003 $25,500,000
June 30, 2003 $26,000,000
September 30, 2003 $26,500,000
December 31, 2003 and thereafter $27,500,000"
-2-
3
(c) Section 8.2 of the Credit Agreement is amended by
deleting such Section in its entirety and replacing it with the following:
"SECTION 8.2 Ratio of Consolidated Debt to EBITDA. Maintain as of the
end of each fiscal quarter of the Borrower a Ratio of Consolidated Debt to
EBITDA for the most recently completed four fiscal quarters of the Borrower of
not more than the ratio set forth below:
Four Fiscal Quarters ending on or about: Ratio
---------------------------------------- -----
December 31, 1998 4.85:1
March 31, 1999 5.25:1
June 30, 1999 5.40:1
September 30, 1999 5.40:1
December 31, 1999 5.25:1
March 31, 2000 4.25:1
June 30, 2000 4.00:1
September 30, 2000 3.75:1
December 31, 2000 3.50:1
March 31, 2001 4.00:1
June 30, 2001 3.85:1
September 30, 2001 3.65:1
December 31, 2001 3.50:1
March 31, 2002 3.25:1
June 30, 2002 3.25:1
September 30, 2002 3.25:1
December 31, 2002 3.00:1
March 31, 2003 3.00:1
June 30, 2003 3.00:1
September 30, 2003 3.00:1
December 31, 2003 and thereafter 2.75:1"
(d) Section 8.3 of the Credit Agreement is amended by deleting
such Section in its entirety and replacing it with the following:
"SECTION 8.3 Interest Coverage Ratio. Maintain as of each date set
forth below, a ratio of (i) EBITDA for the most recently completed four fiscal
quarters of the Borrower to (ii) Consolidated cash Interest Expense for such
period (except that in respect of the first three testing periods referred to
below, actual amounts expended for cash Interest Expense, in each case since the
Closing Date shall be computed on an annualized basis) of not less than the
ratio set forth below for such period:
Four Fiscal Quarters ending on or about: Ratio
---------------------------------------- -----
December 31, 1998 2.25:1
March 31, 1999 2.00:1
June 30, 1999 2.00:1
September 30, 1999 2.00:1
-3-
4
December 31, 1999 2.15:1
March 31, 2000 2.25:1
June 30, 2000 2.35:1
September 30, 2000 2.75:1
December 31, 2000 3.00:1
March 31, 2001 2.75:1
June 30, 2001 2.75:1
September 30, 2001 2.85:1
December 31, 2001 and thereafter 3.00:1"
(e) Section 8.4 of the Credit Agreement is amended by
deleting such Section in its entirety and replacing it with the following:
"SECTION 8.4 Fixed Charge Coverage Ratio. Maintain as of the end of
each fiscal quarter of the Borrower a ratio of (i) EBITDA for the most recently
completed four fiscal quarters of the Borrower, less Capital Expenditures made
by the Borrower and its Subsidiaries during such period (except that in respect
of the first three testing periods referred to below, the amount of Capital
Expenditures shall be deemed to be equal to the lesser of (x) actual amounts
expended for Capital Expenditures, in each case since the Closing Date, computed
on an annualized basis and (y) $3,500,000), less the aggregate amount of
federal, state, local and foreign taxes paid by the Borrower and its
Subsidiaries in cash during such period, less cash dividends paid by the
Borrower to the holders of its common stock during such period, to the (ii) sum
of (x) cash interest payable by the Borrower and its Subsidiaries on all Debt
during such period (except that in respect of the first three testing periods
referred to below, actual amounts expended for cash Interest Expense, in each
case since the Closing Date shall be computed on an annualized basis), plus (y)
principal amounts of all Debt payable by the Borrower and its Subsidiaries
during such period (except that in respect of the first three testing periods
referred to below, such principal amounts payable in each case since the Closing
Date, computed on an annualized basis, shall be deemed to be equal to
$3,000,000), of not less than the ratio set forth below for such period:
Four Fiscal Quarters ending on or about: Ratio
---------------------------------------- -----
December 31, 1998 1.10:1
March 31, 1999 1.00:1
June 30, 1999 1.00:1
September 30, 1999 1.00:1
December 31, 1999 1.05:1
March 31, 2000 .70:1
June 30, 2000 .40:1
September 30, 2000 .40:1
December 31, 2000 .60:1
March 31, 2001 and thereafter 1.10:1"
-4-
5
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 Credit Agreement and all references
in the other 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.
(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.
ARTICLE 3. Representations and Warranties.
The Borrower and each Loan Party hereby represents and warrants to the
Lenders and the Administrative Agent that:
Section 3.1 Existing Representations. Each of the representations and
warranties contained in Article 4 of the Credit Agreement is true in all
material respects on, and as though made as of, the date hereof, other than any
such representation or warranties that, by their terms, refer to a specific
date, in which case, as of such specific date.
Section 3.2 No Default. As of the date hereof, there exists no Default
or Event of Default under the Credit Agreement, as amended hereby, and no event
which, with the giving of notice or lapse of time, or both, would constitute
such a Default or Event of Default.
Section 3.3 Power, Authority, Consents. The Borrower has the power to
execute, deliver and perform the Credit Agreement, as amended by this Amendment.
The Borrower has taken all necessary action to authorize the execution, delivery
and performance of this Amendment. No consent or approval of any Person, no
consent or approval of any landlord or mortgagee, no waiver of any lien or right
of distraint or other similar right and no consent,
-5-
6
license, approval, authorization or declaration of any governmental authority,
bureau or agency, is required in connection with the execution, delivery or
performance by the Borrower or the validity, enforcement or priority, of this
Amendment.
Section 3.4 No Violation of Law or Agreements. The execution and
delivery by the Borrower of this Amendment and performance by it hereunder, will
not violate any provision of law presently in effect and will not conflict with
or result in a breach of any order, writ, injunction, ordinance, resolution,
decree, or other similar document or instrument presently in effect of any court
or governmental authority, bureau or agency, domestic or foreign, or the
certificate of incorporation or by-laws of the Borrower, or create (with or
without the giving of notice or lapse of time, or both) a default under or
breach of any agreement, bond, note or indenture presently in effect to which
the Borrower is a party, or by which it is bound or any of its properties or
assets is affected, or result in the imposition of any Lien of any nature
whatsoever upon any of the properties or assets owned by or used in connection
with the business of the Borrower, except for the Liens created and granted
pursuant to the Collateral Documents as acknowledged and confirmed herein.
Section 3.5 Binding Effect. This Amendment has been duly executed and
delivered by the Borrower and constitutes the valid and legally binding
obligation of the Borrower, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws, now or hereafter in effect, relating to or affecting the enforcement of
creditors' rights generally, and except that the remedy of specific performance
and other equitable remedies are subject to judicial discretion.
ARTICLE 4. Conditions to Amendment.
The effectiveness of the amendments contained in Article 1 shall be
subject to the fulfillment of the following conditions precedent:
Section 4.1 Amendment. The Borrower and the Required Lenders shall
have executed and delivered to the Administrative Agent this Amendment.
Section 4.2 Resolutions; Incumbency. The Administrative Agent shall
have received copies of the following:
(a) Copies of resolutions of the Board of Directors of the
Borrower authorizing the execution and delivery of this Amendment, duly
certified by the secretary or an assistant secretary of the Borrower; and
(b) An incumbency certificate with the names and true
signatures of the officers of the Borrower authorized to sign this Amendment.
Section 4.3 No Default. There shall exist no Event of Default or
Default under the Credit Agreement.
Section 4.4 Representations and Warranties. The representations and
warranties contained in Article 3 hereof shall be true and correct in all
material respects on the date hereof;
-6-
7
and the Administrative Agent shall have received a certificate dated the date
hereof certifying that the conditions set forth in this Article 4 are satisfied
as of the date of effectiveness hereof.
Section 4.5 Amendment Fee. The Borrower shall have paid an amendment
fee to the Administrative Agent, for the account of each Lender which has
approved this Amendment, as evidenced by such Lender's timely execution and
delivery of a counterpart signature page to this Amendment, in an amount equal
to 0.15% of the aggregate of such Lender's Commitments.
ARTICLE 5. Miscellaneous.
Section 5.1 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 5.2 Governing Law. This Amendment shall be governed and
construed in accordance with the laws of the State of New York.
Section 5.3 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 5.4 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 5.5 Binding Effect; Assignment. This Amendment shall not
become effective unless executed and delivered by the Required Lenders. 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 5.6 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.
-7-
