Exhibit 10.43
FIRST AMENDMENT AND WAIVER TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
FIRST AMENDMENT AND WAIVER TO REVOLVING CREDIT AND TERM LOAN AGREEMENT,
dated as of March 14, 1997 (this "Amendment"), by and among SALESLINK
CORPORATION (the "Borrower"), CMG INFORMATION SERVICES, INC. (the "Parent
Guarantor"), PACIFIC DIRECT MARKETING CORP. (the "Subsidiary Guarantor"), THE
FIRST NATIONAL BANK OF BOSTON and the other lending institutions listed on
Schedule 1 to the Credit Agreement (collectively, the "Banks") and THE FIRST
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NATIONAL BANK OF BOSTON as agent for the Banks (in such capacity, the "Agent"),
amending certain provisions of the Revolving Credit and Term Loan Agreement,
dated as of October 24, 1996 (the "Credit Agreement"), by and among the
Borrower, the Parent Guarantor, the Subsidiary Guarantor, the Agent and the
Banks. Terms not otherwise defined herein which are defined in the Credit
Agreement shall have the same respective meanings herein as therein.
WHEREAS, the Borrower and the Banks and the Agent desire to amend and waive
certain provisions of the Credit Agreement as provided more fully herein below;
NOW THEREFORE, in consideration of the mutual agreements contained in the
Credit Agreement and herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
(S)1. Amendment to Section 4 of the Credit Agreement. Section 4.6 of the
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Credit Agreement is hereby amended by deleting such (S)4.6 and restating it in
its entirety as follows:
4.6. Letter of Credit Fees. The Borrower shall, on the date of
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issuance or of any extension or renewal of the Letter of Credit and at such
other time or times as such changes are customarily made by the Agent, pay
a fee (in each case a "Letter of Credit Fee") to the Agent in an amount
equal to one percent (1%) per annum of the face amount of such Letter of
Credit (of which 1/8 of such 1% shall be retained for the account of the
Agent as issuer of such Letter of Credit), plus the Agent's customary
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issuance, amendment and other administrative processing fees, such Letter
of Credit Fee (other than the 1/8 of such 1% and not such issuance,
amendment or administrative fee) to be for the accounts of the Banks in
accordance with their respective Commitment Percentages.
(S)2. Amendment to Section 9 of the Credit Agreement. Section 9.3(f) of
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the Credit Agreement is hereby amended by deleting such (S)9.3(f) and restating
it in its entirety as follows:
(f) permit (i) the Parent Guarantor's Unencumbered Cash to be less
than (A) $10,000,000 at any time from the Closing Date through November 30,
1996, (B) $20,000,000 at any time from December 1, 1996 through February
28, 1997, and (C) $15,500,000 at any time thereafter; and (ii) the Parent
Guarantor's and its Subsidiaries Unencumbered Cash to be less than (A)
$35,000,000 at any time from the Closing Date through February 28, 1997,
and (B) $31,000,000 at any time thereafter.
(S)3. Waiver to the Credit Agreement. Pursuant to (a) (S)9.3(c) of the
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Credit Agreement, the Parent Guarantor and the Borrower have agreed that they
will not permit the ratio of the Borrower's Consolidated Operating Cash Flow to
Consolidated Total Debt Service as at December 31, 1996 to be less than
2.50:1.00; and (b) (S)9.3(f)(i) of the Credit Agreement, the Parent Guarantor
and the Borrower have agreed that they will not permit the Parent Guarantor's
Unencumbered Cash to be less than (i) $10,000,000 at any time from the Closing
Date through November 30, 1996 and (ii) $20,000,000 during the period from
December 1, 1996 through February 28, 1997. Notwithstanding the foregoing, the
Banks and the Agent hereby waive, (a) solely for the fiscal quarter ended
December 31, 1996 compliance with the provisions of (S)9.3(c) of the Credit
Agreement; and (b) solely for the period from November 1, 1996 through February
28, 1997, compliance with the provisions of (S)9.3(f)(i) of the Credit
Agreement.
(S)4. Conditions to Effectiveness. This Amendment shall not become
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effective until the Agent shall have received a counterpart of this Amendment
executed by the Borrower, the Parent Guarantor, the Subsidiary Guarantor, the
Agent and the Banks.
(S)5. Representations and Warranties. Each of the Borrower, the Parent
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Guarantor, and the Subsidiary Guarantor hereby represents and warrants to the
Agent and the Banks as follows:
(a) Representation and Warranties in the Credit Agreement. The
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representations and warranties of each of the Borrower, the Parent
Guarantor, and the Subsidiary Guarantor contained in the Credit Agreement
were true and correct in all material respects as of the date when made and
continue to be true and correct in all material respects on the date
hereof, except to the extent of changes resulting from transactions or
events contemplated by the Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in
the aggregate are not materially adverse to the Borrower, the Parent
Guarantor, or the Subsidiary Guarantor, or to the extent that such
representations and warranties relate expressly to an earlier date.
(b) Ratification, Etc. Except as expressly amended hereby, the
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Credit Agreement, and all documents, instruments and agreements related
thereto, are hereby ratified and confirmed in all respects and shall
continue in full force and effect. The Credit Agreement, shall together
with this Amendment, be read and construed as a
single agreement. All references in the Credit Agreement or any related
agreement or instrument shall hereafter refer to the Credit Agreement as
amended hereby.
(c) Authority, Etc. The execution and delivery by each of the
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Borrower, the Parent Guarantor, and the Subsidiary Guarantor of this
Amendment and the performance by each of the Borrower, the Parent
Guarantor, and the Subsidiary Guarantor of all of its agreements and
obligations under the Credit Agreement as amended hereby are within the
corporate authority of the Borrower, the Parent Guarantor, and the
Subsidiary Guarantor and have been duly authorized by all necessary
corporate action on the part of the Borrower, the Parent Guarantor, and the
Subsidiary Guarantor.
(d) Enforceability of Obligations. This Amendment and the Credit
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Agreement as amended hereby constitute the legal, valid and binding
obligations of the Borrower, the Parent Guarantor, and the Subsidiary
Guarantor enforceable against the Borrower, the Parent Guarantor, and the
Subsidiary Guarantor in accordance with their terms, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement
of, creditors' rights and except to the extent that availability of the
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be
brought.
(e) No Default. No Default or Event of Default has occurred and is
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continuing, and no Default or Event of Default will exist after execution
and delivery of this Amendment.
(S)6. No Other Amendments or Waivers. Except as expressly provided in
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this Amendment, all of the terms and conditions of the Credit Agreement and the
other Loan Documents remain in full force and effect.
(S)7. Execution in Counterparts. This Amendment may be executed in any
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number of counterparts, each of which shall be deemed an original, but which
together shall constitute one instrument.
(S)8. Expenses. Pursuant to (S)14 of the Credit Agreement, all costs and
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expenses incurred or sustained by the Agent in connection with this Amendment,
including the fees and disbursements of legal counsel for the Agent in
producing, reproducing and negotiating the Amendment, will be for the account of
the Borrower whether or not the transactions contemplated by this Amendment are
consummated.
(S)9. Miscellaneous. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
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UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (EXCLUDING THE LAWS
APPLICABLE TO CONFLICTS OR CHOICE OF LAW). The captions in this Amendment are
for convenience of reference only and shall not define or limit the provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as a
document under seal as of the date first above written.
SALESLINK CORPORATION
By:
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Title:
CMG INFORMATION SERVICES, INC.
By:
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Title:
PACIFIC DIRECT MARKETING CORP.
By:
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Title:
THE FIRST NATIONAL BANK
OF BOSTON, Individually and Agent
By:
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Title: