Exhibit 10.39


 


SECOND AMENDMENT TO
CREDIT AGREEMENT


 


This Second Amendment to Credit Agreement (the “Amendment”) is made as of May 31, 2007 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 Banks 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 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.


 


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


 


SECTION 1.                                          AMENDMENT.


 


Subject to satisfaction
of the conditions precedent set forth in Section 2 hereof, the Credit
Agreement is hereby amended as follows:


 


Section 1.01.                    Section 1.4 of the Credit Agreement is hereby
amended by (i) restating the definition of “LIBOR Index Rate” in its entirety to read as set forth below, (ii) striking
the definition of “Telerate Page 3750” in its
entirety and (iii) inserting a new definition of “Reuters
LIBOR01 Page” which reads as set forth below:


 


“LIBOR Index Rate” means, for any Interest Period, 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 period equal to such
Interest Period, which appears on the Reuters LIBOR01 Page as of 11:00 a.m.
(London, England time) on the day two (2) Business Days before the
commencement of such Interest Period.


 


“Reuters LIBOR01 Page” means the display designated as “LIBOR01” on the Reuters Service (or such other page as
may replace LIBOR01 on that service or such other service as may be nominated
by the British Bankers’ Association as an information vendor for the purpose of
displaying British Bankers’ Association Interest Settlement Rates for U.S.
Dollar deposits).


 

















 


Section 1.02.                    Section 4.4 of the Credit Agreement is hereby
amended by adding the following sentence thereto:


 


The Borrower will cooperate with the Administrative
Agent in connection with the publication of certain materials and/or
information provided by or on behalf of the Borrower to the Administrative
Agent and the Lenders (collectively, “Information Materials”)
pursuant to this Agreement and will designate Information Materials that are
either (a) available to the public or not material with respect to the
Borrower and its  Subsidiaries or any of their
respective securities, for purposes of United States federal and state
securities laws, as “Public Information”
or (B) not Public Information as “Private Information”.


 


Section 1.03.                    Clause (g) of the definition of “EBITDA” appearing 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:


 


(g) amounts constituting Restricted Cash to the
extent used during such Test Period to satisfy Assumed Liabilities (to the
extent the Borrower or the Parent received a purchase price reduction, offset
or adjustment for the assumption of such Assumed Liabilities) provided that the
aggregate amount of such payments added back to EBITDA pursuant to this clause (g) shall
not exceed $6,000,000 during the term of this Agreement and


 


Section 1.04.                    The definitions of “Compliance Certificate”
and “Hedging Liability” appearing in Section 5.1
of the Credit Agreement are hereby amended in their respective entireties and
as so amended shall be restated to read as follows:


 


“Compliance Certificate” is defined in Section 8.5(h) hereof.


 


“Hedging Liability” means the liability of the Borrower or any Guarantor  to any of the Lenders, or any Affiliates of such Lenders,
in respect of any interest rate, foreign currency, and/or commodity swap,
exchange, cap, collar, floor, forward, future or option agreement, or any other
similar interest rate, currency or commodity hedging arrangement, as the
Borrower or such Guarantor, as the case may be, may from time to time enter
into with any one or more of the Lenders party to this Agreement or their
Affiliates in the ordinary course of business and not for speculative purposes.


 


Section 1.05.                    Section 5.1 of the Credit Agreement is hereby
amended by adding thereto a new definition of “Term Loan” which
reads as follows:


 


“Term Loan” means a Term B Loan.


 


Section 1.06.                    Section 13.12(a)(iv) of the Credit Agreement
is hereby amended in its entirety and as so amended shall be restated to read
as follows:


 


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(iv)                              Assignment and Acceptance. 
The parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500 except in the case of an assignment to a Lender,
an Affiliate of a Lender or an Approved Fund with respect to such Lender, and
the assignee, if it is not a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire. With respect to any assignment by a Lender to
an Affiliate or an Approved Fund, such Lender shall continue to be liable as a “Lender” under the Loan Documents until such assignee
executes and delivers an Assignment Agreement and thereby becomes a “Lender.”


 


Section 1.07.                    Section 13.12(c) of the Credit Agreement is
hereby amended in its entirety and as so amended shall be restated to read as
follows:


 


(c)                                  Any Lender, or an Affiliate or Approved
Fund, may at any time pledge or grant a security interest in all or any portion
of its rights under this Agreement to secure obligations of such Lender,
Affiliate or Approved Fund, including any such pledge or grant to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or grant
of a security interest; provided that
no such pledge or grant of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or secured party
for such Lender as a party hereto; provided further, however,
the right of any such pledgee or grantee (other than any Federal Reserve Bank)
to further transfer all or any portion of the rights pledged or granted to it,
whether by means of foreclosure or otherwise, shall be at all times subject to
the terms of this Agreement.


 


Section 1.08.                    Section 13.25 of the Credit Agreement is hereby
amended in its entirety and as so amended shall be restated to read as follows:


 


Section 13.25.                  Confidentiality. 
Each of the Administrative Agent, the Lenders and the L/C Issuer agrees
to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates’
directors, officers, employees and agents, including accountants, legal counsel
and other advisors to the extent any such Person has a need to know such
Information (it being understood that the Persons to whom such disclosure is
made will first be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority (including any self-regulatory authority,
such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process, (d) to any other party hereto, (e) in connection with
the exercise of any remedies hereunder or under any other Loan Document or any
suit, action or


 


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proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (A) any assignee of or participant in, or any prospective
assignee of or participant in, any of its rights or obligations under this
Agreement or (B) any actual or prospective counterparty (or its advisors)
to any swap or derivative transaction relating to the Borrower or any
Subsidiary and its obligations, (g) with the prior written consent of the
Borrower, (h) to the extent such Information (A) becomes publicly
available other than as a result of a breach of this Section or (B) becomes
available to the Administrative Agent, any Lender or the L/C Issuer on a non-confidential
basis from a source other than the Borrower or any Subsidiary or any of their
directors, officers, employees or agents, including accountants, legal counsel
and other advisors, (i) to rating agencies if requested or required by
such agencies in connection with a rating relating to the Loans or Commitments
hereunder, (j) to entities which compile and publish information about the
syndicated loan market, provided that
only basic information about the pricing and structure of the transaction
evidenced hereby may be disclosed pursuant to this subsection (j) or
(k)(i) an investor or prospective investor in securities issued by a
Approved Fund that also agrees that Information shall be used solely for the
purpose of evaluating an investment in such securities issued by a Approved
Fund, (ii) to a trustee, collateral manager, servicer, backup servicer,
noteholder or secured party in securities issued by a Approved Fund in
connection with the administration, servicing and reporting on the assets
serving as collateral for securities issued by such Approved Fund, or (iii) to
a nationally recognized rating agency that requires access to information
regarding the Borrowers or any of their Subsidiaries, the Loans and Loan
Documents in connection with ratings issued in respect of securities issued by
a Approved Fund.  For purposes of this
Section, “Information” means all information
received from the Borrower or any of the Subsidiaries or from any other Person
on behalf of the Borrower or any Subsidiary relating to the Borrower or any
Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the
L/C Issuer on a non-confidential basis prior to disclosure by the Borrower or
any of its Subsidiaries or from any other Person on behalf of the Borrower or
any of the Subsidiaries.


 


SECTION 2.                                          CONDITIONS
PRECEDENT.


 


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


 


Section 2.01.                    The Borrower, the Parent and the Required Lenders shall
have executed and delivered this Amendment.


 


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Section 2.02.                    Legal matters incident to the execution and delivery
of this Amendment shall otherwise be satisfactory to the Administrative Agent
and its counsel.


 


Section 2.03.                    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 3.                                          REPRESENTATIONS.


 


In order to induce the Required Banks to execute and
deliver this Amendment, the Borrower and the Parent, as applicable, hereby
represent to the Required Banks that as of the date hereof, the representations
and warranties set forth in Section 6 of the Credit Agreement are and
shall be and remain true and correct in all material respects 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.


 


SECTION 4.                                          MISCELLANEOUS.


 


Section 4.01.                    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 4.02.                    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 4.03.                    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 New York.


 


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Section 4.04.                    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.


 


[SIGNATURE PAGE TO FOLLOW]


 


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


 


	
   

  	
  SMART BUSINESS ADVISORY
  AND CONSULTING, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
  SMART BUSINESS
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
  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

  	
   

  



 


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