AMENDMENT NO. 8 TO CREDIT AGREEMENT
AMENDMENT NO. 8, dated as of September 30, 2002 (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
that certain Credit Agreement, dated as of August 7, 1998 (as amended to the
date hereof, the "Credit Agreement").
(B) The Borrower, Administrative Agent and Lenders wish to amend the
Credit Agreement as set forth in this Amendment.
(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. Amendments to Credit Agreement.
Section 1.1. The aggregate amount of the Revolving Credit Commitments
are reduced from $7,500,000 to $5,000,000. The Revolving Credit Commitment of
each Revolving Credit Lender shall be reduced pro rata such that the new
Revolving Credit Commitment of each Revolving Credit Lender shall be as set
forth below:
Revolving Credit Lender Revolving Credit Commitment
----------------------- ---------------------------
Fleet National Bank $2,272,727.28
Citizens Bank of Massachusetts $1,363,636.36
LaSalle Bank National Association $ 909,090.91
Credit Lyonnais New York Branch $ 454,545.45
Section 1.2. Section 1.1 is amended by deleting from the definition of
"Applicable Margin" the tables entitled "Applicable Margin for Eurodollar Rate
Advances" and "Applicable Margin for Prime Rate Advances" and replacing them
with the following tables:
Applicable Margin for Eurodollar Rate Advances
Ratio of Consolidated Revolving Credit Advances,
Debt to EBITDA Term A Advances Term B Advances
-------------- --------------- ---------------
Greater than 3.00 3.75% 4.25%
Greater than 2.50
less than or equal to 3.00 3.25% 3.75%
Greater than 2.00
less than or equal to 2.50 3.00% 3.50%
Less than or equal to 2.00 2.50% 3.25%
Applicable Margin for Prime Rate Advances
Ratio of Consolidated Revolving Credit Advances,
Debt to EBITDA Term A Advances Term B Advances
-------------- --------------- ---------------
Greater than 3.00 2.50% 3.00%
Greater than 2.50
less than or equal to 3.00 2.00% 2.50%
Greater than 2.00
less than or equal to 2.50 1.75% 2.50%
Less than or equal to 2.00 1.25% 2.25%
Section 1.3. Section 1.1 of the Credit Agreement is amended by inserting
in the definition of "Capital Expenditures" after the words "real property or
improvements" the words", software development costs"; and inserting after the
words "Net Cash Proceeds" at the end of such definition the words "; and
provided, further, that any software development costs shall be included in the
calculation of Capital Expenditures regardless of whether or not such have been
or should have been, in accordance with GAAP, reflected as additions to
property, plant or equipment on a consolidated balance sheet of such Person".
Section 1.4. Section 2.6(b)(i) of the Credit Agreement is amended by
deleting such Section in its entirety and replacing it with the following:
"Within ninety (90) days following the end of each Fiscal Year, the
Borrower shall execute and deliver to the Administrative Agent a
certificate of the Borrower's Chief Executive Officer or Chief
Financial Officer demonstrating its calculation of Excess Cash Flow for
such Fiscal Year along with a prepayment of the then outstanding
Advances equal to seventy-five percent (75%) of the annual Excess Cash
Flow."
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Section 1.5. Section 5 of the Credit Agreement is amended by adding the
following immediately following Section 5.16 as new Sections 5.17 and 5.18 of
the Credit Agreement:
SECTION 5.17 Review of Fiscal Year 2003 Operating Plan. Borrower agrees
that the Lender Parties shall engage, at Borrower's expense (which
expenses shall be paid directly by Borrower and shall be in an amount
not to exceed $15,000, exclusive of reasonable travel costs), an
independent professional consultant, which consultant shall be
acceptable to Lender Parties in their sole discretion, to conduct a
comprehensive review of Borrower's Fiscal Year 2003 operating plan.
Such review shall consist of, but not be limited to, a review and
analysis of the operating plan assumptions and such other matters as
the Lender Parties shall request in their sole discretion.
SECTION 5.18 UCC Article 9 Revisions. Borrower hereby agrees to
execute and deliver any and all documents and instruments as
reasonably requested by Administrative Agent, including but not limited
to such executed UCC-3 amendments in such jurisdictions as
Administrative Agent may request, in order to perfect and maintain its
security interests in the Collateral under the UCC as in effect from
and after July 1, 2001.
Section 1.6. Section 6.17 of the Credit Agreement is amended by deleting
the maximum Capital Expenditure amounts for the Fiscal Years 2002 through 2006
and replacing them with the following:
Period Amount
------ ------
Fiscal Year 2002 $3,500,000
Fiscal Year 2003 $3,500,000
Fiscal Year 2004 $3,500,000
Fiscal Year 2005 $3,500,000
Fiscal Year 2006 $3,500,000
Section 1.7. Section 8.1 of the Credit Agreement is amended by deleting
the minimum EBITDA covenant levels for the periods of four fiscal quarters
ending on or about September 30, 2002 through December 31, 2003 and replacing
them with the following:
Four Fiscal Quarters ending on or about: Minimum EBITDA
---------------------------------------- --------------
September 30, 2002 $14,500,000
December 31, 2002 $13,500,000
March 31, 2003 $13,500,000
June 30, 2003 $13,000,000
September 30, 2003 $13,500,000
December 31, 2003 $13,750,000
Section 1.8. Section 8.2 of the Credit Agreement is amended by deleting
the maximum Ratio of Consolidated Debt to EBITDA covenant levels for the periods
of four fiscal quarters ending on or about December 31, 2002 through December
31, 2003 and replacing them with the following:
Four Fiscal Quarters ending on or about: Ratio
---------------------------------------- -----
December 31, 2002 2.25:1
March 31, 2003 2.15:1
June 30, 2003 2.15:1
September 30, 2003 2.00:1
December 31, 2003 2.00:1
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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. Effectiveness of Amendment. This Amendment shall be effective upon
the satisfaction of each of the following conditions precedent:
Section 3.1. This Amendment shall have been executed and delivered by
the Borrower, each other Loan Party, the Administrative Agent, the Required
Lenders and Revolving Credit Lenders holding greater than 50% of the aggregate
Revolving Credit Commitments.
Section 3.2. After giving effect to this Amendment, there shall exist no
Event of Default or Default under the Credit Agreement.
Section 3.3. 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 0.25% (i.e.
25 basis points) of the aggregate of such approving Lenders' Commitments after
giving effect to this Amendment.
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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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------
Title: Chief Financial Officer
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[PRIVATE BUSINESS, INC. - AMENDMENT NO. 8 TO CREDIT AGREEMENT]
FLEET NATIONAL BANK,
AS INITIAL ISSUING BANK,
AS SWING LINE BANK,
AS ADMINISTRATIVE AGENT AND
AS LENDER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Director
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[PRIVATE BUSINESS, INC. - AMENDMENT NO. 8 TO CREDIT AGREEMENT]
CITIZENS BANK OF MASSACHUSETTS,
AS LENDER
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Vice President
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[PRIVATE BUSINESS, INC. - AMENDMENT NO. 8 TO CREDIT AGREEMENT]
PILGRIM PRIME RATE TRUST,
AS LENDER
By: Pilgrim Investments, Inc.,
as its Investment Manager
By:_________________________________
Title:______________________________
[PRIVATE BUSINESS, INC. - AMENDMENT NO. 8 TO CREDIT AGREEMENT]
LASALLE BANK NATIONAL ASSOCIATION,
AS LENDER
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
---------------------------------
Title: Senior Vice President
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[PRIVATE BUSINESS, INC. - AMENDMENT NO. 8 TO CREDIT AGREEMENT]
CREDIT LYONNAIS NEW YORK BRANCH,
AS LENDER
By:_________________________________
Title:______________________________
[PRIVATE BUSINESS, INC. - AMENDMENT NO. 8 TO CREDIT AGREEMENT]
