EXHIBIT 10.1
EXECUTION COPY
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made and entered into as of this 5th day of April, 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" or "Lender"), FIRST HORIZON BANK, as a lender and THE PEOPLES
BANK, as a lender.
WITNESSETH:
WHEREAS, the Borrower and the 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 (as so amended,
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 1.1 of the Credit Agreement is hereby amended by deleting
the definition of the following defined terms in their entirety and replacing
them with the following definitions:
"'Base Rate' means for any day a fluctuating rate per annum equal
to the rate of interest in effect for such day as publicly announced from time
to time by Bank of America as its "prime rate." The "prime rate" is a rate set
by Bank of America based upon various factors, including Bank of America's costs
and desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such rate announced by Bank of America
shall take effect at the opening of business on the day specified in the public
announcement of such change. The Base Rate or "prime rate" is not necessarily
the lowest rate charged by Bank of America on its loans and is set by Bank of
America in its sole discretion. If the prime rate index becomes unavailable
during the term of this Loan Bank of America may designate a substitute index
after notifying Borrower."
"'Change of Control' means (a) an event or series of events by
which Lightyear owns less than 26.5% of the equity securities of Borrower
entitled to vote for members of the board of directors, unless such ownership
reduction is in connection with the issuance of Ownership Interests or use of
proceeds therefrom (to the extent otherwise permitted in this Agreement)
resulting in net cash proceeds to the Borrower (prior to the use of any such net
cash proceeds) of at least Thirty Five Million Dollars ($35,000,000), (b) the
failure of Borrower to own, directly or indirectly, one hundred percent (100%)
of the Ownership Interests of any Subsidiary (other than in connection with a
Disposition permitted under Section 7.5 hereof), or (c) Xxxx Xxxxx ceases to be
employed by Borrower in a capacity comparable to his capacity as of the Closing
Date, and a replacement executive satisfactory to Lender is not named within
sixty (60) days of such change."
"'Collateral Documents' means all agreements, instruments and
documents now or hereafter executed and delivered in connection with this
Agreement pursuant to which Liens are granted or purported to be granted to Bank
of America in Collateral securing all or part of the Secured Obligations each in
form and substance satisfactory to Bank of America, including, without
limitation, the Borrower Security Agreement, the Subsidiary Security Agreement,
the Borrower Stock Pledge Agreement and the Subsidiary Stock Pledge Agreement."
"'Lender' means, collectively, Bank of America, First Horizon,
Peoples Bank, and each such Lender's successors and assigns."
"'Loans' means, collectively, the Revolving Credit Loan, the Term
A Loan, the Term B Loan, the Term C Loan and the Term D Loan, and "Loan" means
any one of the foregoing."
"'Majority Lenders' shall mean Persons the total of whose (a)
unfunded portion of the Revolving Commitment plus (b) Loans then outstanding
exceeds fifty-one percent (51%) of the sum of (i) the aggregate unfunded amount
of the Revolving Commitment plus (ii) the aggregate amount of the Loans then
outstanding, in each case held by all such Persons entitled to vote hereunder."
"'Notes' means the Revolving Credit Loan Note, the Term A Loan
Note, the Term B Loan Note, the Term C Loan Note and Term D Loan Note."
"'Revolving Credit Maturity Date' means with respect to the
Revolving Credit Loan, (a) January 23, 2008, or (b) such earlier date as (i)
payment of the remaining outstanding principal amount of the Revolving Credit
Loan or of all remaining outstanding Obligations shall be due (whether by
acceleration or otherwise) and (ii) the Revolving Commitment shall be
terminated."
"'Term B Loan' means the term loan made pursuant to Section
2.2(b)."
"'Term Loans' means, collectively, the Term A Loan, the Term B
Loan, the Term C Loan and the Term D Loan Note."
(b) Section 1.1 of the Credit Agreement is hereby further amended by
inserting the following new defined terms in appropriate alphabetical order:
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"'First Amendment' means that certain First Amendment to Amended
and Restated Credit Agreement by and between the Borrower and Bank of America,
N.A., dated as of February 17, 2006."
"'First Horizon' means First Horizon Bank."
"'Peoples Bank' means The Peoples Bank."
"'Second Amendment Date' means April 5, 2006."
"'Secured Obligations' means, collectively, the Revolving Credit
Loan, the Term A Loan and the Term B Loan (including, without limitation, all
principal, interest and fees and expenses related thereto and/or owing to Bank
of America)."
"'Term C Loan' means the term loan made pursuant to Section
2.2(c)."
"'Term C Loan Maturity Date' means, with respect to the Term C
Loan, the earlier of (i) September 30, 2006 or (ii) such earlier date as payment
of the remaining outstanding principal amount of the Term C Loan or all
remaining outstanding Obligations shall be due (whether by acceleration or
otherwise)."
"'Term C Loan Note' means that certain promissory note in the
aggregate principal amount not to exceed One Million Dollars ($1,000,000) issued
by Borrower to Lender in form and substance satisfactory to the applicable
Lender."
"'Term D Loan' means the term loan made pursuant to Section
2.2(d)."
"'Term D Loan Maturity Date' means, with respect to the Term D
Loan, the earlier of (i) September 30, 2006 or (ii) such earlier date as payment
of the remaining outstanding principal amount of the Term D Loan or all
remaining outstanding Obligations shall be due (whether by acceleration or
otherwise)."
"'Term D Loan Note' means that certain promissory note in the
aggregate principal amount not to exceed Seven Hundred and Fifty Thousand
Dollars ($750,000) issued by Borrower to Lender in form and substance
satisfactory to the applicable Lender."
(c) Section 1.1 of the Credit Agreement is hereby amended by deleting
the defined term "LIBOR" in part, beginning with the lead-in and through
subsection (a) of such definition, and replacing it with the following:
"'LIBOR' means for any Interest Period with respect to any LIBOR
Loan, a rate per annum determined by Bank of America pursuant to the
following formula:
LIBOR = London Inter-Bank Offered Rate
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(1.00 - Reserve Percentage)
Where,
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(a) "London Inter-Bank Offered Rate' means the average per annum
interest rate at which U.S. dollar deposits would be offered for the
applicable interest period by major banks in the London inter-bank market,
as shown on the Telerate Page 3750 (or any successor page) at approximately
11:00 a.m. London time two (2) London Banking Days before the commencement
of the interest period. If such rate does not appear on the Telerate Page
3750 (or any successor page), the rate for that interest period will be
determined by such alternate method as reasonably selected by Bank of
America. A "London Banking Day" is a day on which Bank of America's London
Banking Center is open for business and dealing in offshore dollars."
(d) Section 2.1 of the Credit Agreement is hereby amended by inserting
a new subsection (f) as follows:
"(f) INCREASE AND REDUCTION OF REVOLVING COMMITMENT. To the
extent there has been a repayment, in full or in part, of the Term A Loan
pursuant to Section 2.12(c) hereof, the Revolving Commitment shall increase
dollar for dollar by the amount of the repayments applied to the Term A
Loan from such net cash proceeds." Notwithstanding anything herein to the
contrary, in the event that the Revolving Commitment is increased pursuant
to Section 2.12 hereof, there will be mandatory reductions of the Revolving
Commitment as follows: Two Hundred Fifty Thousand Dollars ($250,000) on
June 30, 2006; Five Hundred Thousand Dollars ($500,000) on September 30,
2006 and on December 31, 2006; and Seven Hundred Fifty Thousand Dollars
($750,000), on the last day of each March, June, September, and December
thereafter, as applicable, and ending on the Revolving Credit Maturity
Date, on which date Borrower will repay the Outstanding Amount on the
Revolving Credit Loan."
(e) Section 2.2 of the Credit Agreement is hereby amended by inserting
a new subsection (c) as follows:
"(c) Term C Loan.
(i) Loan Amount. First Horizon agrees to provide a Term C
Loan in the amount of One Million Dollars ($1,000,000). The Term C Loan is
available in one disbursement from First Horizon on the Second Amendment
Date so long as the proceeds of the Term C Loan are used for lawful
corporate purposes in the ordinary course of the Borrower's business.
(ii) Repayment Terms. Borrower will pay interest on the Term
C Loan beginning on June 30, 2006 and then on the last day of each
following fiscal quarter, ending on the Term C Loan Maturity Date.
(iii) Borrower will repay principal on the Term C Loan in
installments as follows: Five Hundred Thousand Dollars ($500,000) on July
24, 2006, and the remaining Outstanding Amount of the Term C Loan,
including all accrued and unpaid interest, on the Term C Loan Maturity
Date.
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(iv) Prepayment Term. Borrower may prepay the Term C Loan in
full or in part at any time.
(v) Interest Rate. The interest rate applicable to the Term
C Loan will be the rate per annum equal to, as elected by Borrower in
accordance with Section 2.4 hereof, (i) LIBOR plus three percent (3.00%) or
(ii) Lender's Base Rate."
(f) Section 2.2 of the Credit Agreement is hereby amended by inserting
a new subsection (d) as follows:
"(d) Term D Loan.
(i) Loan Amount. Peoples Bank agrees to provide a Term D
Loan in the amount of Seven Hundred Fifty Thousand Dollars ($750,000). The
Term D Loan is available in one disbursement from Peoples Bank on the
Second Amendment Date so long as the proceeds of the Term D Loan are used
for lawful corporate purposes in the ordinary course of the Borrower's
business.
(ii) Repayment Terms. Borrower will pay interest on the Term
D Loan beginning on June 30, 2006 and then on the last day of each
following fiscal quarter and ending on the Term D Loan Maturity Date.
(iii) Borrower will repay the Term D Loan in full, including
all accrued and unpaid interest, on the Term D Loan Maturity Date.
(iv) Prepayment Term. Borrower may prepay the Term D Loan in
full or in part at any time.
(v) Interest Rate. The interest rate applicable to the Term
D Loan will be the rate per annum equal to, as elected by Borrower in
accordance with Section 2.4 hereof, (i) LIBOR plus three percent (3.00%) or
(ii) Lender's Base Rate."
(g) Section 2.4 of the Credit Agreement is hereby amended by deleting
each reference to the defined term "Lender" and replacing it with "Bank of
America."
(h) Section 2.5 of the Credit Agreement is hereby amended by deleting
such section in its entirety and replacing it with the following:
"Prepayments. Borrower may, upon notice to the applicable Lender
at any time or from time to time voluntarily prepay Loans in whole or in
part without premium or penalty; provided that (i) such notice must be
received by Bank of America not later than 11:00 a.m., Atlanta time, (A)
three (3) Business Days prior to any date of prepayment of LIBOR Loans, and
(B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of
LIBOR Loans shall be in a principal amount of Five Hundred Thousand Dollars
($500,000) or a whole multiple of One Hundred Thousand Dollars ($100,000)
in excess thereof; and (iii)
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any prepayment of Base Rate Loans shall be in a principal amount of One
Hundred Thousand Dollars ($100,000) or a whole multiple of One Hundred
Thousand Dollars ($100,000) in excess thereof, or, in each case, if less,
the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Loans to be prepaid and whether such prepayment is to be applied to the
Revolving Credit Loan or the Term Loans. If Borrower specifies the Term
Loans, prepayments shall be applied first, to the Term B Loan, until the
same has been repaid in full; and second, pro rata to the remaining Term
Loans, until the same have been repaid in full. If such notice is given by
Borrower, Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein. If no notice is given, prepayments shall be applied first, to the
Revolving Credit Loan; second, to the Term B Loan; and third, pro rata to
the remaining Term Loans. Any prepayment of a LIBOR Loan shall be
accompanied by all accrued interest thereon, together with any additional
amounts required pursuant to Section 3.4."
(i) Section 2.10 of the Credit Agreement is hereby amended by deleting
such section in its entirety and replacing it with the following:
"Section 2.10 Payments Generally.
(a) (i) All payments to be made by Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by Borrower
hereunder shall be made to Bank of America, at Lender's Office, for the
account of the applicable Lender, in Dollars and in immediately available
funds not later than 5:00 p.m., Atlanta time, on the date specified herein.
All payments received by Bank of America after 5:00 p.m., Atlanta time
shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue.
(ii) On each date when the payment of any principal,
interest or fees are due hereunder or under any Note, Borrower agrees to
maintain on deposit in an ordinary checking account maintained by Borrower
with Bank of America (as such account shall be designated by Borrower in a
written notice to Bank of America from time to time, the "Borrower
Account") an amount sufficient to pay such principal, interest or fees in
full on such date. Borrower hereby authorizes Bank of America (A) to deduct
automatically all principal, interest or fees when due hereunder or under
any Note from Borrower Account, and (B) if and to the extent any payment of
principal, interest or fees under this Agreement or any Note is not made
when due to deduct any such amount from any or all of the accounts of
Borrower maintained at Bank of America. Bank of America agrees to provide
written notice to Borrower of any automatic deduction made pursuant to this
Section 2.10(a)(ii) showing in reasonable detail the amounts of such
deduction.
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(b) If any payment to be made by Borrower shall come due on a day
other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.
(c) Receipt by Bank of America of any payment intended for any
other Lender hereunder on or prior to 5:00 p.m., Atlanta time on any
Business Day shall be deemed to constitute receipt by the Lender on such
Business Day. In the case of a payment for the account of the Lender, Bank
of America will promptly thereafter distribute the amount so received in
like funds to the Lender. If Bank of America shall not have received any
payment from the Borrower as and when due, Bank of America will promptly
notify the Lender accordingly. In the event that Bank of America shall fail
to make distribution to the Lender as required under this Section 2.10,
Bank of America agrees to pay Lender interest from the date such payment
was due until paid at the Federal Funds Rate.
(d) Prior to the declaration of an Event of Default under Section
8.2 hereof, if some but less than all amounts due from the Borrower are
received by Bank of America with respect to the Obligations, Bank of
America shall distribute such amounts in the following order of priority,
all on a pro rata basis to the Lender: (i) to the payment on a pro rata
basis of any fees or expenses then due and payable to Bank of America or
the Lender, or any of them; (ii) to the payment of interest then due and
payable on the Loans ratably in proportion to the interest accrued as to
each Loan, as applicable; (iii) to the payment of all other amounts not
otherwise referred to in this Section 2.10(d) then due and payable to the
Lender hereunder or under the Notes or any other Loan Document (other than
a Swap Contract); (iv) to the payment of principal then due and payable on
the Loans; allocated pro rata between the Term Loans, all Revolving Credit
Loans and to Cash Collateralize the then Outstanding Amount of all L/C
Obligations in the manner set forth in Section 2.3 hereof, as applicable,
except where otherwise set forth to the contrary herein; and (v) to any
amounts then due and payable to Bank of America any of its Affiliates under
any Loan Document that is a Swap Contract. The above allocations may be
altered in the sole discretion of the Majority Lenders and Bank of America
shall endeavor to deliver notice of such alteration to the Borrower;
provided, that failure to give such notice shall not affect any alteration
made under this Section 2.10(d)."
(j) Section 2.11 of the Credit Agreement is hereby amended by deleting
such section in its entirety and replacing it with the following:
"Section 2.11 Collateral. Borrower's Obligations to Bank of
America under this Agreement will be secured by the Collateral which
Borrower or any of the Subsidiaries now or hereafter owns. The Collateral
is defined in the Borrower Security Agreement, the Subsidiary Security
Agreement, the Borrower's Stock Pledge Agreement and the Subsidiary Stock
Pledge Agreement. All Collateral securing this Agreement shall also secure
all other present and future obligations of Borrower and each Subsidiary to
Bank of America, and all
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Collateral securing any other present or future obligation of Borrower or
any Subsidiary to Bank of America shall also secure this Agreement.
Notwithstanding anything herein to the contrary, First Horizon and Peoples
Bank hereby acknowledge that at no time shall the Collateral or any
proceeds thereof secure such Lender's security interest in the
Obligations."
(k) Section 2.12(c) of the Credit Agreement is hereby amended by
deleting such subsection in its entirety and replacing it with the following:
"(c) Issuance of Equity Interests. On the first Business Day
following the receipt by any Loan Party of net cash proceeds from the
issuance of equity interests of Borrower, the Loans shall be repaid by an
amount equal to one hundred percent (100%) of such net cash proceeds,
together with any accrued interest on the portion of the Loans repaid;
provided, however, that, with respect to the issuance of equity interests,
no such repayment shall be required (i) after the repayment in full of the
Term C Loan and the Term D Loan, if Borrower notifies Lender that such net
cash proceeds shall be used contemporaneously to pay all or a portion of
the purchase price of an Acquisition permitted pursuant to Section 7.2(a),
(g) or (h) hereof, (ii) with respect to proceeds from the exercise of
warrants outstanding as of the date hereof, preferred stock and warrants
issued to Lightyear pursuant to the terms of the Guarantee Commitment
Letter between Lightyear and Borrower dated as of the date hereof (or the
exercise thereof), or options currently outstanding or issued pursuant to
employee benefit plans or (iii) with respect to equity issued as payment
for services or property."
(l) The last sentence of Section 2.12 of the Credit Agreement is
hereby amended by deleting such sentence in its entirety and replacing it with
the following:
"All repayments under this Section 2.12(a) shall be applied
first, to the Term B Loan; second, to the Term A Loan; third, to the
Revolving Credit Loan, which shall result in a concurrent reduction of the
Revolving Commitment; and fourth, pro rata to the remaining Term Loans
outstanding, if any. All repayments under this Section 2.12(b) and (c)
shall be applied first, to the Term B Loan, until the same has been paid in
full; second, pro rata to the remaining Term Loans, until the same have
been paid in full; and third, to the Revolving Credit Loan."
(m) 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 April 30,
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)."
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(n) Section 7.3(d) of the Credit Agreement is hereby amended by
deleting each reference to the defined term "Obligations" and replacing it with
the defined term "Secured Obligations."
(o) Section 7.3(e) of the Credit Amendment is hereby amended by
deleting such subsection in its entirety and replacing it with the following:
"(e) at any time prior to June 30, 2006, capital lease
obligations assumed in connection with Investments or Acquisitions
permitted pursuant to Section 7.2 hereof, in an aggregate principal amount
not to exceed One Million Five Hundred Thousand Dollars ($1,500,000);"
(p) Section 7.3(i) of the Credit Agreement is hereby amended by
deleting such subsection in its entirety and replacing it with the following:
"(i) [Reserved]; and"
(q) Section 7.6 of the Credit Agreement is hereby amended by inserting
a new subsection (d) as follows:
"(d) in connection with the issuance of Ownership Interests
resulting in net cash proceeds to the Borrower of at least Thirty Five
Million Dollars ($35,000,000) and after repayment in full all Loans then
outstanding, the Borrower may use any remaining net cash proceeds of such
issuance for the purchase, redemption, retirement, cancellation or
termination of capital stock or other equity interest or of any option,
warrant or other right to acquire any such capital stock or other equity
interest held by Lightyear; provided, however, that the Borrower may not,
at any time, use proceeds of the Revolving Credit Loan for such purposes."
(r) Section 8.3 of the Credit Amendment is hereby amended by deleting
such section in its entirety and replacing it with the following:
"Application of Funds. After the exercise of remedies provided
for in Section 8.2 (or after the Loans have automatically become
immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section
8.2):
(a) any amounts received on account of the Obligations from the
net proceeds of any Collateral shall be applied by Lender in the following
order:
First, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts (including Attorney Costs and
amounts payable under Article 3) payable to Bank of America;
Second, to payment of that portion of the Obligations
constituting accrued and unpaid interest on the Term A Loan, Term B Loan,
Revolving Credit Loans and L/C Borrowings;
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Third, to payment of that portion of the Obligations constituting
unpaid principal of the Term A Loan, Term B Loan, Revolving Credit Loan and
L/C Borrowings;
Fourth, to Lender, to Cash Collateralize that portion of L/C
Obligations comprised of the aggregate undrawn amount of Letters of Credit;
Fifth, to payment of all other Obligations on a pro rata basis;
and
Sixth, the balance, if any, after all of the Obligations have
been indefeasibly paid in full, to Borrower or as otherwise required by
Law; and
(b) any other amounts received on account of the Obligations
shall be applied by Lender in the following order:
First, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts (including Attorney Costs and
amounts payable under Article 3) payable to Lender;
Second, to payment of that portion of the Obligations
constituting accrued and unpaid interest on the Loans and L/C Borrowings;
Third, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings;
Fourth, to Lender, to Cash Collateralize that portion of L/C
Obligations comprised of the aggregate undrawn amount of Letters of Credit;
and
Fifth, the balance, if any, after all of the Obligations have
been indefeasibly paid in full, to Borrower or as otherwise required by
Law.
Subject to Section 2.3(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause "fourth" in Sections
8.3(a) and (b) above shall be applied to satisfy drawings under such
Letters of Credit as they occur. If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or
expired, such remaining amount shall be applied to the other Obligations,
if any, in the order set forth above."
(s) Section 9.1 of the Credit Amendment is hereby amended by deleting
such section in its entirety and replacing it with the following:
"Amendments. Neither this Agreement nor any Loan Document nor any
term hereof or thereof may be amended orally, nor may any provision hereof
or thereof be waived orally but only by an instrument in writing signed by
or at the direction of the Majority Lenders and, in the case of an
amendment, by the Borrower, except that in the event of (a) any increase in
the amount of a Lender's portion of the Commitment, (b) any delay or
extension in the terms of any scheduled Commitment reduction or repayment
of the Loans provided in Section 2.5 or 2.12 hereof, respectively, (c) any
reduction in any scheduled payment of principal, as provided in Section
2.2, interest or fees, or of
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postponement of the payment of any of the foregoing without a corresponding
payment of such principal, interest or fee amount by the Borrower, (d) any
release of any material portion of the Collateral for the Loans, except
under Section 7.5 hereof, (e) any waiver of any Default due to the failure
by the Borrower to pay any sum due to the Lender hereunder, (f) any release
of any material Guaranty of all or any portion of the Obligations, except
in connection with a merger, sale or other disposition otherwise permitted
hereunder (in which case, such release shall require no further approval by
the Lender) or (g) any amendment of this Section 9.1, of the definition of
Majority Lenders, any amendment or waiver or consent may be made only by an
instrument in writing signed by the Lender and, in the case of an
amendment, by the Borrower. Any amendment to any provision hereunder
governing the rights, obligations, or liabilities of the Lender, in its
capacity as such, may be made only by an instrument in writing signed by
such affected Lender."
3. AMENDMENTS TO COLLATERAL DOCUMENTS.
(a) Each of the Borrower Security Agreement, the Borrower Stock Pledge
Agreement, the Subsidiary Security Agreement, the Subsidiary Stock Pledge
Agreement and the Lightyear Guaranty are hereby amended by deleting each
reference to the defined term "Lender" and replacing it with "Bank of America."
(b) Each of the Borrower Security Agreement, the Borrower Stock Pledge
Agreement, the Subsidiary Security Agreement, the Subsidiary Guaranty, the
Subsidiary Stock Pledge Agreement and the Lightyear Guaranty are hereby amended
by deleting each reference to the defined term "Obligations" and replacing it
with the defined term "Secured Obligations."
4. 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 delivery of the
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 (i) previously fulfilled in accordance with the terms of the
Credit Agreement, as amended hereby, (ii) the Borrower has provided the
Lender updates to information provided to the Lender in accordance with the
terms of such representations and warranties, or (iii) relating
specifically to the Closing Date or otherwise inapplicable;
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(ii) the Borrower has the corporate power and authority (i) to
enter into this Amendment, and (ii) 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
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: (i) 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 (ii) 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 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.
5. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. The effectiveness of
this Amendment is subject to Bank of America's receipt of Borrower's and First
Horizon's signature page to this Amendment and the payment of all fees owing to
Bank of America and First Horizon hereunder and in connection herewith.
6. 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.
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(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.
7. 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 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.
8. 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.
9. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and inure
to the benefit of the successors and permitted assigns of the parties hereto.
10. 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.
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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: CFO
BANK OF AMERICA, N.A.,
as Lender
By: /s/Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
FIRST HORIZON BANK,
as Lender
By: /s/ R. Xxxxxxx Xxxxxx
------------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: S.V.P.
THE PEOPLES BANK,
as Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Banking Officer
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE 1 of 3 (9241420
ACKNOWLEDGED AND CONSENTED
TO BY THE FOLLOWING GUARANTORS:
PRIVATE BUSINESS INSURANCE, LLC
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Counsel
FORSEON CORPORATION
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Counsel
TOWNE SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Counsel
KVI CAPITAL, LLC
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Counsel
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE 2 of 3 (9241420
CAPTIVA FINANCIAL SOLUTIONS, LLC
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Counsel
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE 3 of 3 (9241420
