Exhibit 10.42


 


FIFTH AMENDMENT TO
CREDIT AGREEMENT AND WAIVER


 


This Fifth Amendment to Credit Agreement and Waiver
(the “Amendment”) is made as of November 19,
2008 among the undersigned, Smart Business Advisory and Consulting, LLC a
Delaware limited liability company (the “Borrower”),
Smart Business Holdings, Inc., a Delaware corporation (the “Parent”), Bank of Montreal (“BMO”),
individually and as Administrative Agent (BMO being referred to herein in such
capacity as the “Administrative Agent”), and the
other Lenders currently party to the Credit Agreement (together with BMO,
collectively referred to herein as the “Lenders”).


 


PRELIMINARY STATEMENTS


 


A.                                   The Borrower, the Parent, the
Administrative Agent and the Lenders entered into a Credit Agreement dated as
of May 15, 2007 (as heretofore amended, the “Credit
Agreement”).  All capitalized
terms used herein without definition shall have the same meanings herein as
such terms have in the Credit Agreement.


 


B.                                      The Borrower has requested that the
Lenders waive certain Events of Default that have occurred under the Credit
Agreement and amend certain provisions to the Credit Agreement and the Lenders
are willing to do so under the terms and conditions set forth in this
Amendment.


 


C.                                      The Borrower acknowledges and agrees that
the principal amount of Loans and Letters of Credit as of November 18,
2008, is $45,322,150 ($44,437,500 in Term Loans, $0 in Revolving Loans, $0 in
Swing Loans, $0 in Letters of Credit and $884,650 in BMO Hedge Termination
Payment), and such amount (together with interest and fees thereon) is justly
and truly owing by the Borrower without defense, offset or counterclaim.


 


NOW, THEREFORE, for good and valuable consideration,
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:


 


SECTION 1.                                                 WAIVER.


 


Section 1.01.                                The Borrower acknowledges the Existing Defaults set
forth on Schedule I (the “Existing Defaults”).


 


The Borrower has requested that the Lenders waive the
Existing Defaults. Accordingly, subject to the satisfaction of the conditions
precedent set forth in Section 8 below, the Administrative Agent and the
Lenders hereby waive the Existing Defaults.


 


Section 1.02.                                The Parent and the Borrower acknowledge and agree that
the foregoing waiver is limited to the matters expressly set forth herein and
the Parent and the Borrower remain obligated to comply with all other terms and
conditions of the Credit Agreement and the other Loan Documents.  The Parent and the Borrower further
acknowledge and agree that the Lenders shall not be obligated in the future to
waive any provision of the Credit Agreement or the other Loan Documents as a
result of having provided the waiver contained herein.


 

















 


Section 1.03.                                The Borrower has requested that the Lenders waive the
requirement pursuant to Section 8.5(h) of the Credit Agreement that
the Borrower deliver a Compliance Certificate with respect to its fiscal
quarter ended September 30, 2008. Accordingly, subject to the satisfaction
of the conditions precedent set forth in Section 8 below, the
Administrative Agent and the Lenders hereby waive the requirement for the
delivery of such Compliance Certificate.


 


SECTION 2.                                                 TERMINATION
OF REVOLVING CREDIT COMMITMENTS.


 


Section 2.01. Effective as of the date hereof, the Revolving Credit
Commitments (including without limitation the L/C Sublimit and Swing Line
Sublimit) shall be terminated in their entirety, the Borrower shall not have
the right to request credit under the Revolving Credit and the Lenders shall
not be obligated to honor any such request for credit under the Revolving
Credit.


 


SECTION 3.                                                 AMENDMENTS.


 


Subject to
satisfaction of the conditions precedent set forth in Section 8 hereof,
the Credit Agreement is hereby amended as follows:


 


Section 3.01.                                The defined terms “Base Rate”
and “Eurodollar Reserve Percentage”
appearing in Section 1.4 of the Credit Agreement are hereby amended in
their entireties and as so amended shall be restated to read as follows:


 


“Base Rate” means, for any day, the rate per annum
equal to the greatest of:  (a) the
rate of interest announced or otherwise established by the Administrative Agent
from time to time as its prime commercial rate, or its equivalent, for U.S.
Dollar loans to borrowers located in the United States as in effect on such
day, with any change in the Base Rate resulting from a change in said prime
commercial rate to be effective as of the date of the relevant change in said
prime commercial rate (it being acknowledged and agreed that such rate may not
be the Administrative Agent’s best or lowest rate), (b) the sum of (i) the
rate determined by the Administrative Agent to be the average (rounded upward,
if necessary, to the next higher 1/100 of 1%) of the rates per annum quoted to
the Administrative Agent at approximately 10:00 a.m. (Chicago time) (or as
soon thereafter as is practicable) on such day (or, if such day is not a
Business Day, on the immediately preceding Business Day) by two or more Federal
funds brokers selected by the Administrative Agent for sale to the Administrative
Agent at face value of Federal funds in the secondary market in an amount equal
or comparable to the principal amount for which such rate is being determined, plus (ii) 1/2 of 1%, and (c) the LIBOR Quoted Rate
for such day plus 1.50%.  As used herein, the


 


2

















 


term “LIBOR Quoted Rate”
means, for any day, the rate per annum equal to the quotient of (i) the
rate per annum (rounded upwards, if necessary, to the next higher one
hundred-thousandth of a percentage point) for deposits in U.S. Dollars for a
one-month interest period which appears on the LIBOR01 Page as of 11:00 a.m.
(London, England time) on such day (or, if such day is not a Business Day, on
the immediately preceding Business Day) divided by (ii) one (1) minus
the Eurodollar Reserve Percentage.


 


“Eurodollar Reserve Percentage” means the maximum reserve percentage,
expressed as a decimal, at which reserves (including, without limitation, any
emergency, marginal, special, and supplemental reserves) are imposed by the
Board of Governors of the Federal Reserve System (or any successor) on “eurocurrency liabilities”, as defined in such Board’s
Regulation D (or any successor thereto), subject to any amendments of such
reserve requirement by such Board or its successor, taking into account any
transitional adjustments thereto.  For
purposes of this definition, the relevant Loans shall be deemed to be “eurocurrency liabilities” as defined in Regulation D
without benefit or credit for any prorations, exemptions or offsets under
Regulation D. The Eurodollar Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in any such reserve
percentage.


 


Section 3.02.                                The table appearing in the defined term “Applicable Margin” set forth in Section 5.1 of the
Credit Agreement is hereby amended in its entirety and as so amended shall be
restated to read as follows:


 


	
  LEVEL

  	
   

  	
  TOTAL
  FUNDED

  DEBT/EBITDA RATIO FOR

  SUCH PRICING DATE

  	
   

  	
  APPLICABLE
  MARGIN FOR

  BASE RATE LOANS UNDER

  TERM B CREDIT SHALL BE:

  	
   

  	
  APPLICABLE
  MARGIN FOR

  EURODOLLAR LOANS

  UNDER TERM B CREDIT

  SHALL BE:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III

  	
   

  	
  Greater than or
  equal to 4.00

  	
   

  	
  4.00

  	
  %

  	
  5.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  Less than 4.00
  to 1.0, but greater than or equal to 3.50 to 1.0

  	
   

  	
  3.50

  	
  %

  	
  5.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I

  	
   

  	
  Less than 3.50 to 1.0

  	
   

  	
  3.00

  	
  %

  	
  4.50

  	
  %

  



 


Section 3.03.                                Section 1.2 of the Credit Agreement
shall be amended in its entirety and as so amended shall be restated to read as
follows:


 


Section 1.2.  [Intentionally omitted]


 


3

















 


Section 3.04.                                Section 1.3 of the Credit Agreement shall be
amended in its entirety and as so amended shall be restated to read as follows:


 


Section 1.3.  [Intentionally omitted]


 


Section 3.05.                                Section 1.8(a) of the Credit
Agreement is hereby amended by striking the reference to the date “May 15, 2013” and substituting the date “March 31, 2011.”


 


Section 3.06.                                Section 1.8(b) of the Credit
Agreement is hereby amended in its entirety and as so amended shall be restated
to read as follows:


 


(b)                                 BMO Hedge Termination Payment. 
The Borrower shall make principal payments of the BMO Hedge Termination
Payment in installments on the last day of each March, June, September and
December in each year, commencing with the calendar quarter ending December 31,
2008, with the amount of each such principal installment to equal $2,482, it
being agreed that a final payment consisting of all principal and interest not
sooner paid on the BMO Hedge Termination Payment shall be due and payable on March 31,
2011.


 


Section 3.07.                                The third sentence of each of
Sections 1.9(b)(i), (ii), (iii) and (iv) of the Credit Agreement
shall be amended in its entirety and as so amended shall be restated to read as
follows:


 


The amount of each of such prepayment shall be applied
ratably to the outstanding Term B Loans and BMO Hedge Termination Payment
based upon the outstanding principal amounts thereof until paid in full.


 


Section 3.08.                                Section 1.9(b)(v) of the Credit
Agreement shall be amended in its entirety and as so amended shall be restated
to read as follows:


 


(v)                                 [Intentionally omitted]


 


Section 3.09.                                Section 1.13 of the Credit Agreement
shall be amended in its entirety and as so amended shall be restated to read as
follows:


 


Section 1.13. 
[Intentionally omitted]


 


Section 3.10.                                Section 1.15 of the Credit Agreement shall be
amended in its entirety and as so amended shall be restated to read as follows:


 


Section 1.15. 
[Intentionally omitted]


 


4

















 


Section 3.11.                                Section 2.1(a) of the Credit Agreement shall
be amended in its entirety and as so amended shall be restated to read as
follows:


 


(a)                                  [Intentionally omitted]


 


Section 3.12.                                Section 2.1(b) of the Credit Agreement shall
be amended in its entirety and as so amended shall be restated to read as follows:


 


(b)                                 [Intentionally omitted]


 


Section 3.13.                                Section 5.1 of the Credit Agreement
is hereby amended by adding thereto a new defined term “BMO Hedge
Termination Payment” which reads as follows:


 


“BMO Hedge Termination Payment” means the Hedging Liability owing to
Bank of Montreal pursuant to that certain ISDA Master Agreement dated as of June 25,
2007, between the Borrower and Bank of Montreal, together with the Schedules
thereto of each date therewith.


 


Section 3.14.                                The following defined terms appearing in Section 5.1
of the Credit Agreement are hereby amended in their entireties and as so
amended shall be restated to read as follows:


 


“EBITDA” means, with reference to any period
(each, a “Test Period”), Net Income for such Test
Period plus the sum of all amounts deducted in
arriving at such Net Income amount in respect of (a) Interest Expense for
such Test Period, (b) federal and state income tax expense for such Test
Period, (c) depreciation of fixed assets and amortization of intangible
assets for such Test Period, (d) non-cash expenses or charges (including
without limitation non-cash stock-based compensation expenses and non-cash
impairment charges) incurred during such Test Period, (e) all amounts paid
to FTI Consulting, Inc. or other agents engaged or retained by or on
behalf of the Administrative Agent or the Lenders during such Test Period, (f) without
duplication, non-capitalized expenses incurred during such period related to
certain amendments to the Loan Documents or related agreements in an aggregate
amount not to exceed $500,000, (g) non-recurring executive search,
relocation, retention and severance expenses incurred during such Test Period
(to the extent incurred prior to December 31, 2009), (h) non-recurring
employee severance, office closure or lease acceleration expenses or charges
incurred during such Test Period, (i) non-recurring expenses incurred
during such Test Period arising solely from the closing and winding up of the
Borrower’s London operations, and (j) other pro forma adjustments


 


5

















 


for such Test Period proposed by the Borrower and
reasonably acceptable to the Required Lenders.


 


“Fixed Charges” means, with reference to any period, the
sum of (a) all payments of principal made or to be made during such period
with respect to Indebtedness for Borrowed Money of the Borrower and its
Subsidiaries, (b) Interest Expense (other than amounts representing a
write-down of capitalized debt costs arising from the reduction of the
aggregate Commitments contemplated by the Fifth Amendment to this Agreement)
for such period payable or paid in cash, (c) Tax Distributions paid or
payable in cash by the Borrower and its Subsidiaries during such period, (d) payments
permitted by Section 8.12(c) hereof made during such period, (e) non-recurring
executive search, relocation, retention and severance expenses incurred during
such period (to the extent incurred prior to December 31, 2009) and (f) non-recurring
cash expenses incurred during such Test Period arising solely from the closing
and winding up of the Borrower’s London operations.


 


“Lenders” means and includes BMO Capital Markets
Financing, Inc. and the other financial institutions from time to time
party to this Agreement, including each assignee Lender pursuant to Section 13.12
hereof and including Bank of Montreal with respect to the BMO Hedge Termination
Payment.


 


“Loan” means any Term B Loan or the BMO Hedge
Termination Payment, whether outstanding as a Base Rate Loan or Eurodollar Loan
or otherwise, each of which is a “type” of Loan
hereunder.


 


Section 3.15.                                Section 5.1 of the Credit Agreement
is hereby amended by striking the defined terms “Cure Right”
and “Permitted Acquisition” appearing
therein and all references to such terms in the Credit Agreement or the other
Loan Documents shall be deemed of no further force or effect.


 


Section 3.16.                                Section 6.6 of the Credit Agreement
is hereby amended in its entirety and as so amended shall be restated to read
as follows:


 


Section 6.6.                                No Material Adverse Change.  Since October 31, 2008, or, if later, the date of
the most recent audited financial statements delivered pursuant to Section 8.5(b) hereof
(whichever is later), there has been no change in the condition (financial or
otherwise) or business prospects of the Parent, the Borrower or any Subsidiary
except those occurring in the ordinary course of business, none of which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect.


 


6

















 


Section 3.17.                                Clause (h) of Section 8.9
of the Credit Agreement is hereby amended in its entirety and as so amended
shall be restated to read as follows:


 


(h)                                 [Intentionally Omitted];


 


Section 3.18.                                Clause (b) of Section 8.12
of the Credit Agreement is hereby amended in its entirety and as so amended
shall be restated to read as follows:


 


(b)                                 [Intentionally Omitted];


 


Section 3.19.                                Section 8.16 of the Credit Agreement
is hereby amended in its entirety and as so amended shall be restated to read
as follows:


 


Section 8.16.                         No Changes in Fiscal Year. 
The fiscal year of the Parent and its Subsidiaries ends on December 31
of each year; and the Parent shall not, nor shall it permit any Subsidiary to,
change its fiscal year from its present basis.


 


Section 3.20.                                Section 8.21 of the Credit Agreement
is hereby amended in its entirety and as so amended shall be restated to read
as follows:


 


Section 8.21.                         Domestic EBITDA. 
The Borrower shall maintain its business such that not less than 66-2/3%
of the EBITDA of the Borrower and its Subsidiaries in any 12 consecutive
calendar month period commencing with the 12 consecutive calendar month period
ending December 31, 2009 is attributable to the Borrower and its Domestic
Subsidiaries (excluding any of their respective Foreign Subsidiaries).


 


Section 3.21.                                Section 8.22(a) of the Credit
Agreement is hereby amended in its entirety and as so amended shall read as
follows:


 


(a)                                  Total Funded Debt/EBITDA Ratio. 
As of the last day of each fiscal quarter of the Borrower ending during
the relevant period set forth below, the Borrower shall not permit the Total
Funded Debt/EBITDA Ratio to be greater than the corresponding ratio set forth
opposite such period below:


 


	
  PERIOD(S) ENDING

  	
   

  	
  TOTAL FUNDED

  DEBT/EBITDA RATIO SHALL

  NOT BE GREATER THAN:

  
	
   

  	
   

  	
   

  
	
  12/31/09

  	
   

  	
  8.00 to 1.0

  
	
   

  	
   

  	
   

  
	
  3/31/10

  	
   

  	
  7.80 to 1.0

  
	
   

  	
   

  	
   

  
	
  6/30/10

  	
   

  	
  7.70 to 1.0

  
	
   

  	
   

  	
   

  
	
  9/30/10

  	
   

  	
  7.60 to 1.0

  
	
   

  	
   

  	
   

  
	
  12/31/10 and thereafter

  	
   

  	
  7.50 to 1.0

  



 


7

















 


Section 3.22.                                Section 8.22(b) of the Credit
Agreement is hereby amended in its entirety and as so amended shall read as
follows:


 


(b)                               Fixed Charge Coverage Ratio. 
As of the last day of each fiscal quarter of the Borrower specified
below, the Borrower shall maintain a ratio of (i) EBITDA for the period
set forth below (each, a “Compliance Period”),
less Capital Expenditures for such Compliance Period, plus,
to the extent such Compliance Period includes the fiscal quarter ended December 31,
2008, the aggregate equity contribution (not to exceed $5,000,000) made by the
Sponsor to the Parent and contributed by the Parent to the Borrower in
connection with the Fifth Amendment to this Agreement, to (ii) Fixed
Charges for the Compliance Period set forth below of not less than the
corresponding ratio set forth opposite such Compliance Period below:


 


	
  COMPLIANCE PERIOD ENDED

  	
   

  	
  FIXED CHARGE COVERAGE RATIO

  SHALL NOT BE GREATER THAN:

  
	
   

  	
   

  	
   

  
	
  Fiscal Quarter Ended 12/31/08

  	
   

  	
  1.1 to 1.0

  
	
   

  	
   

  	
   

  
	
  Two Fiscal Quarters Ended 3/31/09

  	
   

  	
  1.1 to 1.0

  
	
   

  	
   

  	
   

  
	
  Three Fiscal Quarters Ended 6/30/09

  	
   

  	
  1.1 to 1.0

  
	
   

  	
   

  	
   

  
	
  Four Fiscal Quarters Ended 9/30/09

  	
   

  	
  1.15 to 1.0

  
	
   

  	
   

  	
   

  
	
  Four Fiscal Quarters Ended 12/31/09

  	
   

  	
  1.15 to 1.0

  
	
   

  	
   

  	
   

  
	
  Four Fiscal Quarters Ended 3/31/10 and thereafter

  	
   

  	
  1.15 to 1.0

  



 


Section 3.23.                                Section 8.22(c) of the Credit
Agreement is hereby amended in its entirety and as so amended shall read as
follows:


 


Minimum EBITDA. 
The Borrower shall at all times, maintain EBITDA as of the last day of
each fiscal quarter specified below, for the period specified below, in an
amount not less than the amount set forth opposite such period below:


 


8

















 


	
  PERIOD

  	
   

  	
  MINIMUM REQUIRED

  AMOUNT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiscal Quarter Ended
  12/31/08

  	
   

  	
  $

  	
  (3,700,000

  	
  )

  
	
   

  	
   

  	
   

  	
   

  
	
  Two Fiscal Quarters
  Ended 3/31/09

  	
   

  	
  $

  	
  (2,450,000

  	
  )

  
	
   

  	
   

  	
   

  	
   

  
	
  Three Fiscal Quarters
  Ended 6/30/09

  	
   

  	
  $

  	
  (1,150,000

  	
  )

  
	
   

  	
   

  	
   

  	
   

  
	
  Four Fiscal Quarters
  Ended 9/30/09

  	
   

  	
  $

  	
  150,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Four Fiscal Quarters
  Ended 12/31/09

  	
   

  	
  $

  	
  5,100,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Four Fiscal Quarters
  Ended 3/31/10

  	
   

  	
  $

  	
  5,100,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Four Fiscal Quarters
  Ended 6/30/10

  	
   

  	
  $

  	
  5,100,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Four Fiscal Quarters
  Ended 9/30/10

  	
   

  	
  $

  	
  5,100,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Four Fiscal Quarters
  Ended 12/31/10 and thereafter

  	
   

  	
  $

  	
  5,100,000

  	
   

  



 


Section 3.24.                                Section 8.22(e) of the Credit
Agreement shall be amended in its entirety and as so amended shall be restated
to read as follows:


 


(e)                                  Operating Leases. 
The Borrower shall not, nor shall it permit any Subsidiary to, acquire
the use or possession of any Property under a lease or similar arrangement,
whether or not the Borrower or any Subsidiary has the express or implied right
to acquire title to or purchase such Property, at any time if, after giving
effect thereto, the aggregate amount of rental expense (net of sublease income
and excluding any accelerated rental expenses resulting from the termination of
a lease of similar arrangement and otherwise as determined in accordance with
GAAP) incurred by the Borrower and its Subsidiaries under all such leases and
similar arrangements during each fiscal year of the Borrower specified below
would exceed the amount specified below for such fiscal year:


 


	
  FISCAL YEAR ENDED

  	
   

  	
  MAXIMUM
  RENTAL EXPENSE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12/31/08

  	
   

  	
  $

  	
  5,750,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12/31/09

  	
   

  	
  $

  	
  5,750,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12/31/10 and thereafter

  	
   

  	
  $

  	
  6,500,000

  	
   

  



 


9

















 


Capital Leases shall not be included in computing
compliance with this Section to the extent the Borrower’s and its
Subsidiaries’ liability in respect of the same is permitted by Section 8.7(b) hereof.


 


Section 3.25.                                Section 8.23 of the Credit Agreement shall be
amended in its entirety and as so amended shall be restated to read as follows:


 


Section 8.23. 
[Intentionally omitted]


 


Section 3.26.                                Section 8.24 of the Credit Agreement shall be
amended in its entirety and as so amended shall be restated to read as follows:


 


Section 8.24. 
[Intentionally omitted]


 


Section 3.27.                                Section 8 of the Credit Agreement is
hereby amended by adding the following subsection:


 


Section 8.25.  Provision of Cash Flow Forecasts. 
On or prior to the 3rd day of each calendar week, the Borrower shall
deliver to the Administrative Agent and the Lenders a thirteen (13) week cash
flow forecast which shall include, but not be limited to, reconciliation
(except in the case of the first such cash flow forecast provided pursuant to
the terms hereof) to such thirteen (13) week cash flow forecast previously
delivered to the Administrative Agent and the Lenders as specified by the
Administrative Agent.


 


Section 3.28.                                Section 8 of the Credit Agreement is
hereby amended by adding the following subsection:


 


Section 8.26.                         London EBITDA. 
Commencing with the fiscal quarter of the Borrower ending December 31,
2008, the Borrower shall not permit the sum for any fiscal quarter of the
Borrower of (i) EBITDA attributable to the Borrower’s London, England
operations plus (ii) rental expense for the Borrower’s London, England
facility to be less than $0 for more than two consecutive fiscal quarters of
the Borrower.


 


Section 3.29.                                Section 9.6 of the Credit Agreement
is hereby amended in its entirety and as so amended shall be restated to read
as follows:


 


Section 9.6.                                [Intentionally Omitted].


 


10
















 


SECTION 4.                                                 TERM
LOAN/BMO HEDGE TERMINATION PAYMENT AMORTIZATION


 


Pursuant to the terms of the Capital Contribution Agreement, the
Sponsor contributed $5,000,000 to the Borrower in the form of a capital
contribution, the proceeds (the “Capital Contribution
Proceeds”)  of which were
delivered by the Borrower to the Administrative Agent.  As set forth in the First Amendment to
Forbearance Agreement dated as of August 25, 2008, the Capital
Contribution Proceeds were deposited by the Administrative Agent into the
Collateral Account and continue to be held by the Administrative Agent as
security for, and for application by the Administrative Agent to the
Obligations as directed by the Required Lenders.


 


Upon the effectiveness of this Amendment as set forth in Section 7
below, the parties hereto hereby acknowledge and agree that $3,987,500 of the
Capital Contribution Proceeds shall be withdrawn from the Collateral Account
and applied as and for a mandatory prepayment of the Obligations, such
prepayment to be applied to the Term B Loans (and not the BMO Hedge Termination
Payment).


 


Notwithstanding anything contained in the Credit Agreement to the
contrary, the scheduled installment payments (the “Installment
Payments”), other than the final payment thereof due and owing on March 31,
2011, of the Term B Loans (and not the BMO Hedge Termination Payment) required
under the terms of Section 1.8 of the Credit Agreement, as amended hereby,
shall be paid from the Capital Contribution Proceeds remaining on deposit in
the Collateral Account after giving effect to the mandatory prepayment referred
to in the immediately preceding paragraph. 
To the extent that proceeds on deposit in the Collateral Account at any
time are insufficient to satisfy any such Installment Payment when due, the
Borrower shall remain obligated to  make
such Installment Payment in full.


 


SECTION 5.                                                 ADDITIONAL
AGREEMENTS.


 


The Borrower further agrees that the Administrative Agent shall have
the right to re-engage on behalf of the Lenders FTI Consulting, Inc., to
evaluate the financial condition, operating performance, and business prospects
of the Borrower and its Subsidiaries and to perform such other information
gathering or evaluation acts as may be reasonably requested by the
Administrative Agent or the Required Lenders, and the reasonable costs and
expenses of such financial advisor shall be borne by the Borrower (provided
that so long as no Event of Default shall have occurred and be continuing, the
Borrower shall not be obligated to pay such costs and expenses in excess of
$100,000 in any calendar year) and constitute part of the Obligations.  The Borrower shall take reasonable steps to
make available to such financial advisor and its representatives such
information respecting the financial condition, operating performance, and
business prospects of the Borrower and its Subsidiaries as may be reasonably
requested by such financial advisor and shall make its officers, employees, and
requests its independent public accountants to be available with reasonable
prior notice to discuss such information with such financial advisor and its
representatives.


 


11

















 


SECTION 6.                                                 FEES.


 


Section 6.01.           Upfront Fee. 
The Borrower shall pay to the Administrative Agent, for the ratable
distribution to each Lender (including Bank of Montreal) which executes and
delivers this Amendment, an upfront fee equal to 1.00% of the aggregate
principal amount of the Term Loan and the BMO Hedge Termination Payment
outstanding after application of the Prepayment Amount pursuant to Section 4
above (the “Upfront Fee”).  The Upfront Fee shall be payable in two
installments: (i) 0.50% on the closing date of the Amendment and (ii) 0.50%
on March 31, 2011, or, if earlier, the date of repayment in full of all
Obligations.


 


Section 6.02.           Success Fee.  The
Borrower shall pay to the Administrative Agent, for the ratable benefit of the
Lenders, a success fee (herein, the “Success Fee”)
equal to $1,000,000, which fee shall be due and payable on the earlier to occur
of (i) the final maturity date of the Term B Loans and the BMO Hedge
Termination Payment and (ii) the repayment in full of all Obligations
under the Credit Agreement; provided, however,
that the Success Fee shall be due and payable only to the extent that the
Borrower’s EBITDA for any four consecutive fiscal quarters of the Borrower
ended on or prior to March 31, 2011 is greater than or equal to
$15,000,000.


 


SECTION 7.                                                 TERMINATION
OF CAPITAL CONTRIBUTION AGREEMENT


 


Effective as of the date hereof, the Capital Contribution Agreement
shall be terminated in its entirety and shall be of no further force and
effect.


 


SECTION 8.                                                 CONDITIONS
PRECEDENT.


 


The effectiveness of this Amendment is subject to the satisfaction of
all of the following conditions precedent:


 


Section 8.01.           The
Borrower, the Parent and the Required Lenders shall have executed and delivered
this Amendment.


 


Section 8.02.           The Borrower shall have paid to the Administrative
Agent that portion of the Upfront Fee set forth in Section 6 above which
is due and payable on the closing date of this Amendment.


 


Section 8.03.           Great Hill Equity Partners III, L.P. and its
affiliates shall have made an equity contribution to the Parent in the amount
of $5,000,000 which shall be contributed by the Parent to the Borrower in the
form of a cash equity contribution, the proceeds of which shall be used by the
Borrower for its working capital needs.


 


Section 8.04.           Legal matters incident to the execution and delivery
of this Amendment shall otherwise be satisfactory to the Administrative Agent
and its counsel.


 


12

















 


Section 8.05.           After
giving effect to this Amendment, no Event of Default shall have occurred and be
continuing as of the date of this Amendment that would otherwise take effect.


 


SECTION 9.                                                 POST-CLOSING
COVENANT.


 


The Borrower shall within 30 days following the closing date of
this Amendment, deliver to the Administrative Agent a fully-executed deposit
account control agreement in favor of Administrative Agent on terms reasonably
satisfactory to Administrative Agent, including but not limited to that each
such deposit account control agreement shall provide that Borrower may direct
transfers of amounts in such account to Administrative Agent and that, upon the
occurrence and during the continuation of an Event of Default, no other party,
including Borrower, shall otherwise have control over such deposit account,
with respect to each deposit account set forth on Schedule III to this
Amendment which is not (i) subject to a currently effective deposit
account control agreement or (ii) exempt from any such requirement pursuant to
the provisions of Section 4.2 of the Credit Agreement.


 


SECTION 10.                                           REPRESENTATIONS.


 


In order to induce the Required Lenders to execute and deliver this
Amendment, the Borrower and the Parent, as applicable, hereby represent to the
Required Lenders that as of the date hereof, the representations and warranties
set forth in Section 6 of the Credit Agreement (as amended hereby) are and
shall be and remain true and correct in all material respects subject to the
updated disclosure with respect to Section 6.5 and 6.11 thereof attached
as Schedule II and, unless specifically waived herein, the Borrower is in
compliance with all of the terms and conditions of the Credit Agreement after
giving effect to this Amendment and no Event of Default has occurred and is
continuing under the Credit Agreement or shall result after giving effect to
this Amendment.  The Borrower and the
Parent hereby represent that all deposit accounts of the Borrower and Parent as
of the date hereof are set forth on Schedule 
III attached hereto.


 


SECTION 11.         MISCELLANEOUS.


 


Section 11.01.        RELEASE.  FOR VALUE
RECEIVED, INCLUDING WITHOUT LIMITATION, THE AGREEMENTS OF THE LENDERS IN THIS
AGREEMENT, THE BORROWER HEREBY RELEASES THE ADMINISTRATIVE AGENT AND EACH
LENDER, ITS CURRENT AND FORMER SHAREHOLDERS, DIRECTORS, OFFICERS, AGENTS,
EMPLOYEES, ATTORNEYS, CONSULTANTS, AND PROFESSIONAL ADVISORS (COLLECTIVELY, THE
“RELEASED PARTIES”) OF AND FROM ANY AND
ALL DEMANDS, ACTIONS, CAUSES OF ACTION, SUITS, CONTROVERSIES, ACTS AND
OMISSIONS, LIABILITIES, AND OTHER CLAIMS OF EVERY KIND OR NATURE WHATSOEVER,
BOTH IN LAW AND IN EQUITY, KNOWN OR UNKNOWN, WHICH THE BORROWER HAS OR EVER HAD
AGAINST THE RELEASED PARTIES FROM THE BEGINNING OF THE WORLD TO THIS DATE,
INCLUDING, WITHOUT LIMITATION, THOSE ARISING OUT OF THE EXISTING FINANCING
ARRANGEMENTS BETWEEN THE BORROWER AND THE LENDERS, AND THE BORROWER FURTHER
ACKNOWLEDGES THAT, AS OF THE DATE HEREOF, IT DOES NOT HAVE ANY COUNTERCLAIM,
SET-OFF, OR DEFENSE AGAINST THE RELEASED PARTIES, EACH OF WHICH THE BORROWER
HEREBY EXPRESSLY WAIVES.


 


13

















 


Section 11.02.        The Borrower and the Parent heretofore executed and
delivered the Collateral Documents.  The
Borrower and the Parent hereby acknowledge and agree that the Liens created and
provided for by the Collateral Documents continue to secure, among other
things, the Obligations arising under the Credit Agreement as amended hereby;
and the Collateral Documents and the rights and remedies of the Administrative
Agent and Lenders thereunder, the obligations of the Borrower and the Parent
thereunder, and the Liens created and provided for thereunder in each case
remain in full force and effect and shall not be affected, impaired or
discharged hereby.  Nothing herein
contained shall in any manner affect or impair the priority of the liens and
security interests created and provided for by the Collateral Documents as to
the indebtedness which would be secured thereby prior to giving effect to this
Amendment.


 


Section 11.03.        Except as specifically amended herein or waived
hereby, the Credit Agreement shall continue in full force and effect in
accordance with its original terms. 
Reference to this specific Amendment need not be made in the Credit
Agreement, the Notes, or any other instrument or document executed in
connection therewith, or in any certificate, letter or communication issued or
made pursuant to or with respect to the Credit Agreement, any reference in any
of such items to the Credit Agreement being sufficient to refer to the Credit
Agreement as amended hereby.


 


Section 11.04.        This Amendment may be executed in any number of
counterparts, and by the different parties on different counterpart signature
pages, all of which taken together shall constitute one and the same
agreement.  Any of the parties hereto may
execute this Amendment by signing any such counterpart and each of such
counterparts shall for all purposes be deemed to be an original.  This Amendment shall be governed by the
internal laws of the State of Illinois.


 


Section 11.05.        The Borrower agrees to pay all reasonable documented
out-of-pocket costs and expenses incurred by the Administrative Agent in
connection with the preparation, execution and delivery of this Amendment and
the documents and transactions contemplated hereby, including the documented
reasonable fees and expenses of counsel for the Agent with respect to the
foregoing.


 


Section 11.06.        The Borrower agrees to indemnify the Lenders against
all losses, liabilities, claims, damages and expenses relating to or arising
out of the loan documents, the transactions contemplated hereby, or the
Borrower’s use of loan proceeds, including, without limitation, environmental
problems, except if the same is directly due to the gross negligence or willful
misconduct of the party to be indemnified. 
Such indemnity shall include, without limitation, reasonable documents
out-of-pocket attorneys’ fees and settlement costs, as further described in Section 13.15
(Costs and Expenses; Indemnification) of the Credit Agreement.


 


[SIGNATURE PAGE TO FOLLOW]


 


14

















 


IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment
to Credit Agreement to be executed by their respective officers thereunto duly
authorized as of the date first above written.


 


	
   

  	
  “BORROWER”

  
	
   

  	
   

  
	
   

  	
  SMART BUSINESS ADVISORY
  AND CONSULTING, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
  “PARENT”

  
	
   

  	
   

  
	
   

  	
  SMART BUSINESS
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  



 


15

















 


	
  Accepted and
  agreed to.

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF MONTREAL, as L/C Issuer, and as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
  BMO CAPITAL MARKETS FINANCING, INC., as a Lender and
  as Swing Line Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF
  MONTREAL, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
  MC FUNDING LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Monroe Capital
  Management LLC,

  
	
   

  	
   

  	
  as Collateral Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  GARRISON FUNDING 2008-1
  LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


16

















 


	
   

  	
  MASSACHUSETTS
  MUTUAL LIFE INSURANCE COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Babson Capital
  Management LLC,

  
	
   

  	
   

  	
  as Investment Advisor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  BABSON MID-MARKET CLO
  LTD. 2007-II

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Babson Capital
  Management LLC,

  
	
   

  	
   

  	
  as Collateral Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  KNIGHTSBRIDGE CLO
  2008-1 LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  	
  ACKB LLC, in its
  capacity as Manger

  
	
   

  	
  By:

  	
  A.C. Corporation, its
  sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  KNIGHTSBRIDGE CLO
  2007-1 LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  	
  ACKB LLC, in its
  capacity as Manger

  
	
   

  	
  By:

  	
  A.C. Corporation, its
  sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


17

















 


	
   

  	
  SARGAS CLO I LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Sargas Asset
  Management, LLC, its

  
	
   

  	
   

  	
  Portfolio Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
  CS
  CLO II LLC (F/K/A CS ADVISORS CLO II LTD.)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  CapitalSource CF II
  Inc.,

  
	
   

  	
   

  	
  its Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
  CAPITALSOURCE
  COMMERCIAL LOAN COMPANY, LLC, 2007-3 (F/K/A CS ADVISORS CLO III LTD.)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
  COLTS 2005-2 LTD, AS
  LENDER

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Structured Asset
  Investors, LLC

  
	
   

  	
   

  	
  as Collateral Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
				



 


18

















 


	
   

  	
  COLTS 2007-1 LTD, AS
  LENDER

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Structured Asset
  Investors, LLC

  
	
   

  	
   

  	
  as Collateral Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
				



 


19






 












 


SCHEDULE I


 


EXISTING DEFAULTS


 


1.        Failure to comply with Section 8.5(b) of the Credit
Agreement due to the Parent’s failure to timely deliver its annual financial
statements in accordance with such section for the fiscal year ended December 31,
2007 and, as a result of such failure, an Event of Default has occurred under Section 9.1(b) of
the Credit Agreement


 


2.        Failure to comply with Sections 8.5(g) and 8.9 of the
Credit Agreement due to the failure of the Parent or the Borrower to promptly
deliver written notice of (i) litigation related to the non-compete
agreements of individuals hired by the Borrower and the settlement thereof,
pursuant to which the Borrower paid approximately $1.5 million to settle the
litigation or (ii) the occurrence of the Existing Defaults and, as a
result of such failures, an Event of Default has occurred under Section 9.1(b) of
the Credit Agreement


 


3.        Failure to comply with Section 8.7 of the Credit
Agreement due to the Parent’s payment of the following Parent Subordinated Notes
and, as a result of such payment, an Event of Default has occurred under Section 9.1(b) of
the Credit Agreement:


 


a.        the Parent Subordinated Notes for approximately $257,000 in
the aggregate held by five individuals.


 


4.        Failure to comply with Sections 8.10 and 1.9(b) of the
Credit Agreement due to the Borrower’s divesture of its Baltimore Private
Client practice for approximately $1.3 million and the Borrower’s failure to
provide timely notice thereof and to prepay the Obligations in the amount of
the proceeds thereof and, as a result of such purchase, an Event of Default has
occurred under Section 9.1(b) of the Credit Agreement


 

















 


5.        Failure to comply with Section 8.12 of the Credit
Agreement due to the consummation of the recapitalization of the Parent
described on Exhibit A immediately prior to the closing date of the
Amendment and, as a result of such purchase, an Event of Default has occurred
under Section 9.1(b) of the Credit Agreement


 


6.        Failure to comply with Section 8.12 of the Credit
Agreement due to the Parent’s purchase of its capital stock from the following
holders thereof and, as a result of such purchase, an Event of Default has
occurred under Section 9.1(b) of the Credit Agreement:


 


a.        SBAC, LLC (for $500,000) [capital stock of the Parent
acquired by SBAC, LLC (for administrative convenience, rather than by the
Parent directly) from departing Managing Directors]


 


b.        Three individuals (for less than $1,000 each).


 


7.        Failure to comply with Section 8.21 of the Credit
Agreement due to the Borrower’s failure to ensure that no less than 66 2/3% of
the EBITDA of the Borrower and its Subsidiaries in any 12 consecutive calendar
month period was attributable to the Borrower and its Domestic Subsidiaries
and, as a result of such non-compliance, an Event of Default has occurred under
Section 9.1(b) of the Credit Agreement


 


8.        Failure to comply with Sections 8.22(a), 8.22(b) and
8.22(c) of the Credit Agreement as of December 31, 2007, March 31,
2008, June 30, 2008 and September 30, 2008 and, as a result of such
non-compliance, an Event of Default has occurred under Section 9.1(b) of
the Credit Agreement


 


9.        Failure to comply with Section 8.23 of the Credit
Agreement due to the failure of the Parent and the Borrower to cause the
Parent, the Borrower and the Borrower’s Subsidiaries to maintain the
Administrative Agent (or one of its Affiliates) as its depository bank and, as
a result of such failure, an Event of Default has occurred under Section 9.1(b) of
the Credit Agreement


 


10.      Failure to comply with Section 7 of
the First Amendment to Forbearance Agreement dated as of August 25, 2008,
due to the failure of the Parent to convert its subordinated debt in the
aggregate amount of $5,000,000 issued to Great Hill Equity Partners III, LP and
Great Hill Investors, LLC into capital stock of the Parent by September 10,
2008 and, as a result of such failure, an Event of Default has occurred under Section 9.1(b) of
the Credit Agreement


 


2

















 


EXHIBIT A


 


RECAPITALIZATION OF
PARENT


 


In connection with the recapitalization of the Parent immediately prior
to the closing of the Amendment, the following transaction where consummated.


 


The Parent amended and restated its existing Certificate of
Incorporation to effectuate a 1,000-to-1 reverse stock split and create a class
of Redeemable Preferred Stock of the Parent (the “New Preferred Stock”) with a
six percent (6%) dividend.  Great Hill
Partners III, L.P. and Great Hill Investors, LLC (together, “Great Hill”)
exchanged (i) the Series A Convertible Preferred Stock of the Parent
previously held by Great Hill, (ii) the $5,000,000 subordinated promissory
notes of the Parent and (iii) an additional $5,000,000 capital
contribution, for shares of New Preferred Stock and shares of Common Stock of
the Parent that together represent approximately 99.9% of the outstanding
capital stock of the Parent before the grant of any new stock options.  The Parent’s existing option holders
terminated all outstanding options held by such option holders.  The Parent’s 2007 Stock Option and Grant Plan
was amended to increase the number shares of Common Stock available for grant
from 1,850 (following the reverse stock split) to 333,554, representing
approximately 28% of the Parent’s Common Stock following the recapitalization.


 

















 


SCHEDULE II


 


UPDATED DISCLOSURE


 


SCHEDULE
6.5


 


The
Target’s Interim Statements were restated by the restated 2007 financial
statements previously delivered by the Borrower to the Administrative Agent and
the Lenders.


 


SCHEDULE
6.11


 


The
Parent and the Borrower received in November 2008 notices from two former
service providers threatening litigation against the Parent and the Borrower
for alleged non-payment of severance.


 

















 


SCHEDULE III


 


DEPOSIT ACCOUNTS


 


	
  SMART Business Advisory
  and Consulting, LLC

  	
   

  	
  Bryn Mawr Trust

  	
   

  	
  Operating Account

  
	
  SMART Business Advisory
  and Consulting, LLC

  	
   

  	
  Bryn Mawr Trust

  	
   

  	
  Flex Funding Account

  
	
  SMART and Associates,
  LLP

  	
   

  	
  Bryn Mawr Trust

  	
   

  	
  Operating Account

  
	
  SMART Business Advisory
  and Consulting, LLC

  	
   

  	
  Wachovia

  	
   

  	
  Operating Account

  
	
  SMART Business Advisory
  and Consulting, LLC

  	
   

  	
  Wachovia

  	
   

  	
  Payroll Account

  
	
  SMART UK

  	
   

  	
  Wachovia

  	
   

  	
  Operating Account

  
	
  SMART UK

  	
   

  	
  Wachovia

  	
   

  	
  Operating Account

  
	
  SMART Business Advisory
  and Consulting, LLC

  	
   

  	
  Bank of Montreal

  	
   

  	
  Operating Account

  
	
  SMART Business Advisory
  and Consulting, LLC

  	
   

  	
  Bank of Montreal

  	
   

  	
  Payroll Account

  
	
  SMART Business Advisory
  and Consulting, LLC

  	
   

  	
  Bank of Montreal

  	
   

  	
  Flex Funding Account