Exhibit
10.46
THIRD AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
THIRD AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT (the “Amendment”),
dated as of May 11, 2009, among Kowabunga! Inc. (formerly known as
Think Partnership Inc.), a Nevada corporation
(“Borrower”), each of the Guarantors signatory hereto
(the “Guarantors”) and Wachovia Bank, National
Association (“Bank”).
W I T N E S S E T
H:
WHEREAS, Bank has made
available to Borrower a secured credit facility pursuant to the
terms and conditions of the following: (i) that certain
Amended and Restated Loan Agreement, dated as of February 27, 2008,
between Borrower and Bank, as amended by that certain Master
Consent to Loan Documents and First Amendment to Loan Agreement and
Amended and Restated Revolving Credit Promissory Note dated as of
June 25, 2008, that certain Master Consent, Second Amendment to
Amended and Restated Loan Agreement, Second Amendment to Amended
and Restated Revolving Credit Promissory Note and First Amendment
to Amended and Restated Term Promissory Note, dated as of March 18,
2009, and as amended, restated, supplemented or modified from time
to time (the “Loan Agreement”); (ii) that certain
Amended and Restated Guaranty Agreement, dated as of February 27,
2008, between Borrower, the Guarantors and Bank, as amended,
restated, supplemented or modified from time to time (the
“Guaranty Agreement”); (iii) that certain Amended and
Restated Security Agreement, dated as of February 27, 2008, between
Borrower, the Guarantors and Bank, as amended, restated,
supplemented or modified from time to time (the “Security
Agreement”); (iv) that certain Amended and Restated Revolving
Credit Promissory Note in the original principal amount of
$15,000,000 dated as of February 27, 2008, executed by Borrower
payable to the order of Bank, as amended by that certain Master
Consent to Loan Documents and First Amendment to Loan Agreement and
Amended and Restated Revolving Credit Promissory Note dated as of
June 25, 2008, that certain Master Consent, Second Amendment to
Amended and Restated Loan Agreement, Second Amendment to Amended
and Restated Revolving Credit Promissory Note and First Amendment
to Amended and Restated Term Promissory Note, dated as of March 18,
2009, and as amended, restated, supplemented or modified from time
to time (the “Revolving Credit Note”); (v) that certain
Amended and Restated Term Promissory Note in the original principal
amount of $5,000,000 dated as of February 27, 2008, executed by
Borrower payable to the order of Bank, as amended by that certain
Master Consent, Second Amendment to Amended and Restated Loan
Agreement, Second Amendment to Amended and Restated Revolving
Credit Promissory Note and First Amendment to Amended and Restated
Term Promissory Note, dated as of March 18, 2009, and as amended,
restated, supplemented or modified from time to time (the
“Term Note”); (vi) that certain Letter of Credit dated
September 26, 2007 in the amount of $725,000 (reference number
SM227727) (“Letter of Credit #SM227727”); and (vii) all
other documents executed in connection therewith, as amended,
restated, supplemented or modified from time to time (collectively
with the Loan Agreement, the Guaranty Agreement, the Security
Agreement, the Revolving Credit Note, the Term Note and Letter of
Credit #SM227727, the “Loan Documents”); and
WHEREAS, Borrower and
Guarantors have requested that the Bank agree to amend the Loan
Agreement as further set forth below.
NOW, THEREFORE, in
consideration of the premises and agreements contained herein, the
parties hereto hereby agree as follows:
1.
Definitions . All capitalized terms used
herein and not otherwise defined shall have the respective meanings
provided to such terms in the Loan Documents, as amended
hereby.
2.
Amendments to the
Loan Agreement .
(a)
The “Other
Financial Information” section in the Affirmative Covenants
paragraph of the Loan Agreement is hereby amended by adding the
following new subsection (ii) at the end of subsection (i) and
renumbering the prior subsection (ii) to (iii):
commencing with the
month ending January 31, 2009, a monthly calculation of
Borrower’s Fixed
1
Charge Coverage Ratio
(as defined below) in form and substance satisfactory to
Bank,
(b)
The “Fixed
Charge Coverage Ratio” section in the Financial Covenants
paragraph of the Loan Agreement is hereby amended by inserting the
following at the end of such section:
Notwithstanding the
foregoing, from and after January 1, 2009, Borrower shall not be
required to comply with the foregoing Fixed Charge Coverage Ratio
covenant.
3.
Amendment
Fee .
In consideration of the agreements set forth herein, Borrower
shall pay to Bank an amendment fee in the amount of $15,000 which
amendment fee shall be fully earned on the date hereof (the
“Amendment Fee”) and shall be payable on the date
hereof. The Amendment Fee is in addition to all other fees,
interest, costs and expenses payable in connection with the Loan
Documents and may be charged by Bank to any account of Borrower
maintained by Bank. The Amendment Fee shall be fully earned
by Bank notwithstanding any failure by Borrower to comply with any
other term of this Amendment.
4.
Reaffirmations by
Borrower and the Guarantors .
(a)
Acknowledgment of
Obligations. Borrower and Guarantors hereby acknowledge,
confirm and agree that, as of May 7, 2009, (a) Borrower is indebted
to Bank in respect of the Revolving Credit Note in the principal
amount of $5,605,283.38, (b) Borrower is indebted to Bank in
respect of the Term Note in the aggregate principal amount of
$ 2,410,812.37 and (c) under Letter of Credit #SM227727
remains outstanding and undrawn in the amount of $725,000.
All such Loans, together with interest accrued and accruing
thereon, and all other Obligations, fees, costs, expenses and other
charges now or hereafter payable by Borrower to Bank, in accordance
with the Loan Documents and the Swap Agreements (including this
Agreement), are unconditionally owing by Borrower and Guarantors to
Bank without offset, defense or counterclaim of any kind, nature or
description whatsoever.
(b)
Acknowledgment of
Security Interests. Borrower and Guarantors hereby
acknowledge, confirm and agree that Bank has and shall continue to
have valid, enforceable and perfected first-priority liens upon and
security interests in the Collateral heretofore granted to Bank
pursuant to the Loan Documents or otherwise granted to or held by
Bank.
5.
Conditions to
Effectiveness . This Amendment shall become
effective as of the date when the following conditions have been
met (the “Effective Date”):
(a)
Bank shall have received
a copy of this Amendment executed by Borrower, the Guarantors and
by Bank (whether such parties shall have signed the same or
different copies);
(b)
payment of the
Amend
