EXHIBIT 10.2
EXECUTION COPY
TERM C LOAN NOTE
$1,000,000.00 April 5, 2006
FOR VALUE RECEIVED, the undersigned, PRIVATE BUSINESS, INC., a Tennessee
corporation (the "Borrower"), promise to pay to the order of FIRST HORIZON BANK
(hereinafter, together with its successors and assigns, the "Lender"), at the
office of the Administrative Agent or such other place as the Lender may
designate in writing to the Borrower, the principal sum of ONE MILLION AND
0/100s DOLLARS ($1,000,000.00) of United States funds.
All capitalized terms used herein shall have the meanings ascribed to them
in that certain Credit Agreement dated as of January 23, 2006 (as the same has
been or may be amended, modified, restated or supplemented from time to time,
the "Credit Agreement") by and among the Borrower and the Lender, except to the
extent such capitalized terms are otherwise defined or limited herein.
The principal amount of the Term C Loan evidenced by this Term C Loan Note
shall be paid in such amounts and at such times as are set forth in the Credit
Agreement. The Borrower shall also repay principal outstanding hereunder from
time to time, as necessary, in order to comply with the Credit Agreement. All
amounts paid by the Borrower shall be applied to the Obligations in such order
of application as provided in the Credit Agreement.
A final payment of all principal amounts and other Obligations then
outstanding hereunder shall be due and payable as provided in the Credit
Agreement on the Term C Loan Maturity Date.
The Borrower shall be entitled to borrow, repay, continue and convert the
Lender's portion of the Term C Loan hereunder pursuant to the terms and
conditions of the Credit Agreement. Prepayment of the principal amount of any
Term C Loan may be made only as provided in the Credit Agreement. Any amount of
the Term C Loan repaid or prepaid may not be reborrowed.
The Borrower hereby promises to pay interest on the unpaid principal amount
hereof as provided in Article 2 of the Credit Agreement. Interest under this
Term C Loan Note shall also be due and payable when this Term C Loan Note shall
become due (whether at maturity, by reason of acceleration or otherwise) as
provided in Article 2 of the Credit Agreement. Overdue principal and, to the
extent permitted by applicable Laws, overdue interest, shall bear interest
payable at the Default Rate as provided in Article 2 of the Credit Agreement.
In no event shall the amount of interest (including any fees, commissions
and any other amounts which would constitute interest under applicable Laws
governing the maximum interest permitted to be changed) due or payable hereunder
exceed the maximum rate of interest allowed by applicable Laws and the interest
calculated hereunder and under the Credit Agreement shall be calculated
accordingly so that such maximum lawful rate is not exceeded. In the event any
such payment is inadvertently made by the Borrower or inadvertently received by
the Lender, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall
notify the Lender in writing that they elect to have such excess sum returned
forthwith. It is the express intent hereof that the Borrower not pay and the
Lender not receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may legally be paid by the Borrower under applicable Laws.
All parties now or hereafter liable with respect to this Term C Loan Note,
whether the Borrower, any guarantor, endorser or any other Person or entity,
hereby waive presentment for payment, demand, notice of non-payment or dishonor,
protest and notice of protest.
No delay or omission on the part of the Lender or any holder hereof in
exercising its rights under this Term C Loan Note, or delay or omission on the
part of the Lender in exercising its or their rights under the Credit Agreement
or under any other Loan Document, or course of conduct relating thereto, shall
operate as a waiver of such rights or any other right of the Lender or any
holder hereof, nor shall any waiver by the Lender, or any holder hereof, of any
such right or rights on any one occasion be deemed a bar to, or waiver of, the
same right or rights on any future occasion.
The Borrower promises to pay all reasonable costs of collection, including
attorneys' fees relating to the Obligations, should this Term C Loan Note be
collected by or through an attorney-at-law or under advice therefrom and
otherwise as provided in the Credit Agreement or any other Loan Document.
Time is of the essence of this Term C Loan Note.
This Term C Loan Note, and the indebtedness it evidences are entitled to
the benefits and subject to the terms of, the Credit Agreement, which contains
provisions with respect to the acceleration of the maturity of this Term C Loan
Note upon the happening of certain stated events, and provisions for prepayment.
This Term C Loan Note is unsecured.
This Term C Loan Note shall be construed in accordance with and governed by
the laws of the State of Georgia.
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IN WITNESS WHEREOF, each of the undersigned has caused this Term C Loan
Note to be executed by its duly authorized representative as of the day and year
first above written.
PRIVATE BUSINESS, INC.,
a Tennessee corporation
By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its: CFO
TERM C LOAN NOTE
SIGNATURE PAGE (9251652)
