Exhibit 10.4
CONSENT AND SECOND AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS CONSENT AND SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated as of October 30, 2002, is entered into among SALESLINK
CORPORATION, a Delaware corporation ("SalesLink"), INSOLUTIONS INCORPORATED, a
Delaware corporation, ON-DEMAND SOLUTIONS, INC., a Massachusetts corporation,
PACIFIC DIRECT MARKETING CORP., a California corporation, SALESLINK MEXICO
HOLDING CORP., a Delaware corporation (each herein called a "Borrower" and
collectively, the "Borrowers"), the lenders party hereto (herein collectively
called the "Lenders" and each individually called a "Lender") and LASALLE BANK
NATIONAL ASSOCIATION, as a Lender and as Agent for the Lenders.
W I T N E S S E T H:
WHEREAS, Borrowers and Lenders are parties to a Loan and Security
Agreement, dated October 30, 2001, as amended by that certain First Amendment to
Loan and Security Agreement dated as of August 27, 2002 (the "Existing Loan
Agreement" and as the Existing Loan Agreement is amended and modified by this
Amendment, the "Amended Loan Agreement");
WHEREAS, SalesLink proposes to enter into a Guaranty in the form
attached hereto as Exhibit A (the "Guaranty") in favor of LG Electronics and its
subsidiaries (the "Creditor") pursuant to which SalesLink would guarantee up to
$1,500,000 in indebtedness (the "Guaranteed Indebtedness") that Creditor may
extend to SL Supply Chain Services International Corp., and its subsidiaries
(including SalesLink International C.V., SalesLink International B.V. and
Logistix Singapore Supply Chain Management Pte. Ltd.);
WHEREAS, Section 7.3(H) of the Existing Loan Agreement contains a
covenant that restricts the Borrowers from guaranteeing or otherwise, in any
way, becoming liable with respect to the obligations or liabilities of any other
Person (the "Limitation on Guarantees");
WHEREAS, agreeing to the Guaranty by SalesLink will cause a violation
of the Limitation on Guarantees;
WHEREAS, the Borrowers have requested that the Lenders consent to the
Guarantee, notwithstanding the Limitation on Guarantees and modify the Existing
Loan Agreement in certain respects; and
WHEREAS, the Lenders are willing to consent to the Guarantee and modify
the Existing Loan Agreement in certain respects.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, it is agreed that:
SECTION 1
DEFINED TERMS
Terms defined in the Existing Loan Agreement and not otherwise defined
herein are used herein as therein defined.
SECTION 2
CONSENT
The Lenders hereby consent to SalesLink agreeing to and executing and
delivering the Guaranty, notwithstanding the Limitation on Guarantees and
anything else to the contrary contained in the Existing Loan Agreement or the
Ancillary Agreements.
SECTION 3
AMENDMENTS
3.1 Amendment to Definitions.
(a) Section 1.1 of the Existing Loan Agreement is hereby
amended by adding the following definitions, in proper alphabetical
order:
"Creditor" shall mean LG Electronics and its subsidiaries.
"Guaranteed Indebtedness" shall mean up to $1,500,000 in
indebtedness of SL Supply Chain Services International Corp., and its
subsidiaries (including SalesLink International C.V., SalesLink
International B.V. and Logistix Singapore Supply Chain Management Pte.
Ltd.) guaranteed by SalesLink Corporation under the Guaranty.
"Guaranty" shall mean that certain Guaranty by SalesLink
Corporation in favor of Creditor, dated as of October 30, 2002.
3.2 Notices. A new Section 7.2(J) is hereby inserted into the
Existing Loan Agreement as follows:
"(J) SalesLink shall give Agent prompt notice of any request
for payment under the Guaranty or any other correspondence from the
Creditor. Each such notice shall identify the amount of the requested
payment and the reason for the requested payment. Agent shall promptly
notify each Lender of receipt of such a notice."
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3.3 Modification of Guaranty. A new Section 7.3(O) is hereby
inserted into the Existing Loan Agreement as follows:
"(O) SalesLink and the other Borrowers agree that none of
them shall amend, modify or extend the Guaranty or increase the
Guaranteed Indebtedness without the prior written consent of the
Lenders."
3.4 Amendment to Permitted Date. Exhibit B-1 to the Existing
Credit Agreement is hereby amended by adding the following item:
"3. The Guaranty."
SECTION 4
REPRESENTATIONS AND WARRANTIES
Each Borrower hereby jointly and severally represents and warrants to
Lenders that:
4.1 Due Authorization, etc. The execution and delivery of this
Amendment and the performance of such Borrower's obligations under the Amended
Loan Agreement are duly authorized by all necessary corporate action, do not
require any filing or registration with or approval or consent of any
governmental agency or authority, do not and will not conflict with, result in
any violation of or constitute any default under any provision of its articles
of incorporation or by-laws of that of any of its Subsidiaries or any material
agreement or other document binding upon or applicable to it or any of its
Subsidiaries (or any of their respective properties) or any material law or
governmental regulation or court decree or order applicable to it or any of its
Subsidiaries, and will not result in or require the creation or imposition of
any Lien in any of its properties or the properties of any of its Subsidiaries
pursuant to the provisions of any agreement binding upon or applicable to it or
any of its Subsidiaries.
4.2 Validity. This Amendment has been duly executed and delivered
by such Borrower and, together with the Amended Loan Agreement, are the legal,
valid and binding obligations of such Borrower to the extent such Borrower is a
party thereto, enforceable against such Borrower in accordance with their
respective terms subject, as to enforcement only, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforceability of the
rights of creditors generally.
4.3 Representations and Warranties. The representations and
warranties contained in Section 6 of the Existing Loan Agreement are true and
correct on the date of this Amendment, except to the extent (a) that such
representations and warranties solely relate to an earlier date or (b) changed
by circumstances permitted by the Amended Loan Agreement.
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SECTION 5
CONDITIONS PRECEDENT
The consent set forth in Section 2 and the amendments set forth in
Section 3 of this Amendment shall become effective upon satisfaction of all of
the following conditions precedent:
5.1 Receipt of Documents. Agent shall have received all of the
following, each in form and substance satisfactory to Agent:
(a) Amendment. A counterpart original of this Amendment
duly executed by Borrowers. and
(b) Other. Such other documents as Agent may reasonably
request.
5.2 Other Conditions. No Event of Default or Default shall have
occurred and be continuing.
SECTION 6
MISCELLANEOUS
6.1 Warranties and Absence of Defaults. In order to induce Lenders
to enter into this Amendment, each Borrower jointly and severally hereby
warrants to Lenders, as of the date of the actual execution of this Amendment,
(a) no Event of Default or Default has occurred which is continuing as of such
date and (b) the representations and warranties in Section 4 of this Amendment
are true and correct.
6.2 Documents Remain in Effect. Except as amended and modified by
this Amendment, the Existing Loan Agreement and the other documents executed
pursuant to the Existing Loan Agreement remain in full force and effect and each
Borrower hereby ratifies, adopts and confirms its representations, warranties,
agreements and covenants contained in, and obligations and liabilities under,
the Existing Loan Agreement and the other documents executed pursuant to the
Existing Loan Agreement.
6.3 Reference to Loan Agreement. On and after the effective date
of this Amendment, each reference in the Amended Loan Agreement to "this
Agreement," "hereunder," "hereof," "herein" or words of like import, and each
reference to the "Loan Agreement" in any Note and in any Loan Documents, or
other agreements, documents or other instruments executed and delivered pursuant
to the Amended Loan Agreement, shall mean and be a reference to the Amended Loan
Agreement.
6.4 Headings. Headings used in this Amendment are for convenience
of reference only, and shall not affect the construction of this Amendment.
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6.5 Counterparts. This Amendment may be executed in any number of
counterparts, and by the parties hereto on the same or separate counterparts,
and each such counterpart, when executed and delivered, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same Amendment.
6.6 Expenses. Borrowers agree to pay on demand all costs and
expenses of Lenders (including reasonable fees, charges and disbursements of
Lenders' attorneys) in connection with the preparation, negotiation, execution,
delivery and administration of this Amendment and all other instruments or
documents provided for herein or delivered or to be delivered hereunder or in
connection herewith. In addition, Borrowers agree to pay, and save Lenders
harmless from all liability for, any stamp or other taxes which may be payable
in connection with the execution or delivery of this Amendment, the borrowings
under the Amended Loan Agreement, and the execution and delivery of any
instruments or documents provided for herein or delivered or to be delivered
hereunder or in connection herewith. All obligations provided in this Section
6.6 shall survive any termination of this Amendment or the Amended Loan
Agreement.
6.7 Governing Law. This Amendment shall be a contract made under
and governed by the internal laws of the State of Illinois. Wherever possible,
each provision of this Amendment shall be interpreted in such manner as to be
effective and valid under applicable laws, but if any provision of this
Amendment shall be prohibited by or invalid under such laws, such provisions
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Amendment.
6.8 Successors. This Amendment shall be binding upon Borrowers,
Lenders and their respective successors and assigns, and shall inure to the
benefit of Borrowers, Lenders and the successors and assigns of Lenders.
6.9 No Additional Consent. The consent contained in Section 2
hereof shall not be deemed to be an additional consent or waiver nor shall it
establish a custom or course of dealing among Agent, Lenders and Borrowers.
[signature page attached]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized and delivered at
Chicago, Illinois as of the date first above written.
BORROWERS:
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SALESLINK CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
INSOLUTIONS INCORPORATED,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President
ON-DEMAND SOLUTIONS, INC.,
a Massachusetts corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President
PACIFIC DIRECT MARKETING CORP.,
a California corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President
SALESLINK MEXICO HOLDING CORP.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President
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LENDERS:
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LASALLE BANK NATIONAL ASSOCIATION,
as a Lender and as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Loan Officer
CITIZEN'S BANK OF MASSACHUSETTS,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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