exv10w1









Exhibit 10.1




AGREEMENT AND AMENDMENT NO. 1





     THIS AGREEMENT AND AMENDMENT NO. 1 (this “Amendment”) is made as of February 10, 2009
by and among TIMEPAYMENT CORP, a Delaware corporation (the “Borrower”), SOVEREIGN BANK, as
a Lender and as agent, and the other Lenders party hereto.



     WHEREAS, the parties hereto are parties to a certain Amended and Restated Credit Agreement,
dated as of July 9, 2008 (as amended, supplemented, or restated from time to time, the “Credit
Agreement”; terms defined in the Credit Agreement are used herein with the same meanings);



     WHEREAS, simultaneously with the execution of this Amendment, Wells Fargo Bank, National
Association, acting through its Wells Fargo Business Credit operating division (“Wells
Fargo”), is becoming a Lender under the Credit Agreement with a Commitment of $22,500,000
pursuant to an Additional Lender Supplement dated as of the date hereof and Commerce Bank & Trust
Company is increasing its Commitment by $2,500,000 pursuant to a Commitment Increase Supplement
dated as of the date hereof; and



     WHEREAS, the Borrower and the Lenders wish to agree to the amendments to the Credit Agreement
and other matters contained herein;



     NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:




	 	1.	 	Amendments to the Credit Agreement.





          (a) Section 2.5(a) of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:





“(a) Each Loan which is a Base Rate Loan shall bear interest on the
outstanding principal amount thereof at a rate per annum equal to the
greater of (i) the Base Rate plus one and three quarters percent (1.75%) per
annum, which rate shall change contemporaneously with any change in the Base
Rate, as provided below, and (ii) five percent (5%) per annum. Such
interest shall be payable monthly in arrears on the first Business Day of
each month.”



          (b) Section 2.5(b) of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:





“(b) Each Loan which is a LIBOR Loan shall bear interest on the outstanding
principal amount thereof, for each Interest Period applicable thereto, at a
rate per annum equal to the greater of (i) the LIBOR Rate plus three and
three quarters percent (3.75%) per annum, and (ii) five percent (5%) per
annum. Such interest shall be payable monthly in arrears on the first
Business Day of each month.



 









 





     2. Agreement to Assign Commitment. Wells Fargo hereby agrees to assign, within thirty (30)
days after the date hereof, up to $2,500,000 of its Commitment to each of Sovereign Bank, TD Bank,
N.A. and Danversbank if any or all of such Lenders so elect within such thirty (30) day period, or
such other portions as Wells Fargo and the Lenders purchasing a portion of Wells Fargo’s Commitment
may mutually agree. The assignments to be
made under this Section 2 shall be made pursuant to an Assignment Agreement substantially in the
form attached hereto as Exhibit A.



     3. Effective Date. This Amendment shall become effective as of the date first set forth above
immediately after all of the following shall have occurred:



          (a) the execution and delivery of this Amendment by the Lenders and the Borrower;




          (b) the execution and delivery of the Additional Lender Supplement by Wells Fargo and the
Borrower; and




          (c) the execution and delivery of the Commitment Increase Supplement by Commerce Bank & Trust
Company and the Borrower.




     4. Representations. The Borrower represents and warrants to the Lenders as follows:



          (a) the representations and warranties contained in Section IV of the Credit Agreement are
true and correct in all material respects on and as of the date hereof except to the extent that
such representations and warranties expressly relate to an earlier date;




          (b) immediately following the effectiveness of this Amendment, no Default will have occurred
and be continuing;




          (c) the resolutions referred to in Section 3.1(a)(viii) of the Credit Agreement remain in full
force and effect; and




          (d) after giving effect to the increase to the Total Commitment as of the date hereof as
contemplated hereby (assuming the Total Commitment, as so increased, is fully utilized by the
Borrower), no Default will have occurred and be continuing and the Borrower will be in compliance
on a pro forma basis with all covenants under Section VI of the Credit Agreement.




     5. General. The amendments to the Credit Agreement contained herein are limited as provided
herein and do not extend to any other provisions of the Credit Agreement not specified herein or to
any other matter. The Credit Agreement is ratified and confirmed and shall continue in full force
and effect as amended hereby. This Amendment may be executed in any number of counterparts with
the same effect as if the signatures hereto and thereto were upon the same instrument.



2









 




IN WITNESS WHEREOF, this Agreement and Amendment No. 1 has been executed as a sealed instrument as
of the date first set forth above.




	 	 	 	 	 	 	 	 	 	 	 
	TIMEPAYMENT CORP.	 	SOVEREIGN BANK, Individually and as Agent
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 

Name: Richard F. Latour
	 	 
	 	 	 	 

Name: Jeffrey G. Millman
	 	 
	 

	 	Title: President
	 	 	 	 	 	Title: Senior Vice President	 	 






	 	 	 	 	 
	 	TD BANK, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	C. Lee Willingham 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	COMMERCE BANK & TRUST COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	David J. Costello 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	DANVERSBANK

 	 
	 	By:  	 	 
	 	 	Name:  	Mary E. McLemore 	 
	 	 	Title:  	Vice President 	 
	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




[Signature Page to Agreement and Amendment No.1]