Exhibit 10.38


 


FIRST AMENDMENT TO
CREDIT AGREEMENT


 


This First Amendment to Credit Agreement (the “Amendment”) is made as of May 29, 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 (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:


 


1.01.                     The definition of “Applicable Margin”
appearing in Section 5.1 of the Credit Agreement is hereby amended by (i) striking
the reference to “Level III” appearing in the
third line thereof and substituting therefor the reference to “Level II” and (ii) amending the table appearing
therein 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

  REVOLVING CREDIT AND

  TERM B CREDIT AND

  REIMBURSEMENT

  OBLIGATIONS SHALL BE:

  	
   

  	
  APPLICABLE
  MARGIN FOR

  EURODOLLAR LOANS UNDER

  REVOLVING CREDIT AND

  TERM B CREDIT AND

  LETTER OF CREDIT FEE

  SHALL BE:

  	
   

  	
  APPLICABLE
  MARGIN FOR

  COMMITMENT FEE SHALL

  BE:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III

  	
   

  	
  Greater than or equal to
  3.50 to 1.0

  	
   

  	
  2.00

  	
  %

  	
  3.50

  	
  %

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  Less than 3.50 to 1.0,
  but greater than or equal to 3.00 to 1.0

  	
   

  	
  1.50

  	
  %

  	
  3.00

  	
  %

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I

  	
   

  	
  Less than 3.00 to 1.0

  	
   

  	
  1.00

  	
  %

  	
  2.50

  	
  %

  	
  0.50

  	
  %

  



 

















 


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.


 


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


 


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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.


 


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 First 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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