Exhibit 10.1
FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING
CREDIT AND TERM LOAN AGREEMENT
FIRST Amendment to amended and restated REVOLVING Credit AND TERM LOAN
Agreement, dated as of March 16, 1999 (this "Amendment"), by and among
▇▇▇▇▇▇▇▇▇.▇▇▇ CORPORATION ("SalesLink"), INSOLUTIONS INCORPORATED
("InSolutions", and, collectively with SalesLink, the "Existing Borrowers" and
each individually, an "Existing Borrower"), ON-DEMAND SOLUTIONS, INC., a
Massachusetts corporation (the "New Borrower" and, collectively with the
Existing Borrowers, the "Borrowers" and each individually, a "Borrower") PACIFIC
DIRECT MARKETING CORP. (the "Subsidiary Guarantor"), BANKBOSTON, N.A. and the
other lending institutions listed on Schedule 1 to the Credit Agreement
-------- -
(collectively, the "Banks") and BANKBOSTON, N.A. as agent for the Banks (in such
capacity, the "Agent"), amending certain provisions of the Amended and Restated
Revolving Credit and Term Loan Agreement, dated as of June 11, 1998 (as amended
and in effect from time to time, the "Credit Agreement"), by and among the
Existing Borrowers, 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 New Borrower wishes to become a party (and a joint and several
Borrower) to the Credit Agreement and the Banks have agreed, subject to the
terms and conditions set forth in the Credit Agreement and herein, to make Loans
and otherwise extend credit to the New Borrower;
WHEREAS, the Borrowers, the Banks and the Agent desire to amend 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 Introductory Paragraph of the Credit Agreement. The
--------- -- ------------ --------- -- --- ------ ---------
introductory paragraph of the Credit Agreement is hereby amended by deleting
such paragraph in its entirety and restating it as follows:
This AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
(this "Agreement") is made as of June 11, 1998 by and among (a)
▇▇▇▇▇▇▇▇▇.▇▇▇ CORPORATION ("SalesLink"), a Delaware corporation having its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (b) INSOLUTIONS INCORPORATED ("InSolutions"), a
Delaware corporation having its principal place
-2-
of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (c) ON-
DEMAND SOLUTIONS, INC. ("On-Demand", and collectively with SalesLink and
Insolutions, the "Borrowers" and each individually, a "Borrower"), a
Massachusetts corporation having its principal place of business at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (d) PACIFIC DIRECT MARKING CORP.
("Pacific Direct"), a California corporation having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (e) BANKBOSTON,
N.A. (formerly known as The First National Bank of Boston), a national
banking association, and the other lending institutions listed on Schedule
1 hereto and (f) BANKBOSTON, N.A. as agent for itself and such other
lending institutions.
(S)2. Amendment to Section 1. Section 1 of the Credit Agreement is hereby
--------- -- ---------
amended as follows:
(a) the definition of "Combined Total Interest Expense" is hereby amended
by deleting such definition in its entirety and restating it as follows:
Combined Total Interest Expense: For any period, the aggregate
-------- ----- -------- -------
amount of interest required to be paid or accrued by the Borrowers and
their Subsidiaries during such period on all Indebtedness of the Borrowers
and their Subsidiaries outstanding during all or any part of such period,
other than the Subordinated Debt, whether such interest was or is required
to be reflected as an item of expense or capitalized, including payments
consisting of interest in respect of Capitalized Leases and including
commitment fees, agency fees, facility fees, balance deficiency fees and
similar fees or expenses in connection with the borrowing of money.
(b) the definition of "EBITDA" is hereby amended by deleting such
definition in its entirety and restating it as follows:
EBITDA: With respect to any fiscal period, an amount equal to the
------
sum of (a) Combined Net Income for such period, plus (b) to the extent
----
deducted in the calculation of such Person's Combined Net Income and
without duplication, (i) depreciation and amortization for such period,
plus (ii) other noncash charges, including, without limitation, in process
----
research and development expenses or charges, made in calculating Combined
Net Income for such period, plus (iii) restructuring charges taken by any
----
Borrower in such period (1) for inventory writedown up to a maximum
aggregate amount of not more than $3,100,000 and (2) relating to moving and
relocation up to a maximum aggregate amount of not more than $2,100,000,
plus (iv) tax expense for such period, plus (v) Combined Total Interest
---- ----
Expense paid or accrued during such period, all as determined in accordance
with GAAP.
-3-
(c) the definition of "Loan Documents" is hereby amended by inserting
immediately following the words "the Letters of Credit" a comma and the words
"the Subordination Agreement".
(d) the definition of "Security Agreements" is hereby amended by deleting
such definition in its entirety and restating it as follows:
Security Agreements: Collectively, (a) the Amended and Restated
-------------------
Security Agreement, dated or to be dated on or prior to the Closing Date,
among SalesLink, InSolutions and the Agent and in form and substance
satisfactory to the Agent; (b) the Amended and Restated Security Agreement,
dated or to be dated on or prior to the Closing Date, between Pacific
Direct and the Agent, and in form and substance satisfactory to the Agent;
and (c) the Security Agreement, dated or to be dated on or prior to March
16, 1999, between On-Demand and the Agent and in form and substance
satisfactory to the Agent, and as each Security Agreement may be amended,
restated, modified and/or supplemented from time to time.
(e) the definition of "Total Funded Indebtedness" is hereby amended by
deleting such definition in its entirety and restating it as follows:
Total Funded Indebtedness: All Indebtedness of the Borrowers and their
-------------------------
Subsidiaries for borrowed money (other than the Subordinated Debt),
purchase money Indebtedness and with respect to Capitalized Leases,
determined on a consolidated basis in accordance with GAAP.
(f) Section 1.1 of the Credit Agreement is further amended by inserting
the following definition in the appropriate alphabetical order:
Subordinated Debt. Unsecured Indebtedness of SalesLink that is
-----------------
expressly subordinated and made junior to the payment and performance in
full of the Obligations, and evidenced as such by the Subordination
Agreement or by another written instrument containing subordination
provisions in form and substance approved by the Agent in writing.
Subordination Agreement. The Subordination Agreement, dated as of
-----------------------
January 29, 1999, among the Agent, the Parent and SalesLink and in form and
substance satisfactory to the Banks and the Agent.
(S)3. Amendment to Section 2 of the Credit Agreement. Section 2.2(d) of
----------------------------------------------
the Credit Agreement is hereby amended by deleting the words "dated
-4-
as of the Closing Date" which appears in the first sentence of (S)2.2 and
substituting in place thereof the words "dated as of ▇▇▇▇▇ ▇▇, ▇▇▇▇".
(▇)▇. Amendment to Section 3 of the Credit Agreement. Section 3.2 of the
----------------------------------------------
Credit Agreement is hereby amended by deleting the words "dated the Closing
Date" which appears in the first sentence of (S)3.2 and substituting in place
thereof the words "dated as of ▇▇▇▇▇ ▇▇, ▇▇▇▇".
(▇)▇. Amendment to Section 9 of the Credit Agreement. Section 9 of the
----------------------------------------------
Credit Agreement is hereby amended as follows:
(a) Section 9.1(a)(v) of the Credit Agreement is hereby amended by
deleting the words "within twenty (20) days after the end of each calendar month
or at such earlier time as the Agent may reasonably request, a Borrowing Base
Report" and substituting in place thereof the words "within thirty (30) days
after the end of each calendar month or at such earlier time as the Agent may
reasonably request, a Borrowing Base Report";
(b) Section 9.1(a)(vi) of the Credit Agreement is hereby amended by
deleting the words "within twenty (20) days after the end of each calendar
month, an Accounts Receivable aging report" and substituting in place thereof
the words "within thirty (30) days after the end of each calendar month, an
Accounts Receivable aging report".
(c) Section 9.2(a)(vi) of the Credit Agreement is hereby amended by
deleting the text of (S)9.2(a)(vi) in its entirety and restating it as follows:
"the Subordinated Debt and Indebtedness not otherwise included above and listed
on Schedule 9.2(a) hereto; and".
(d) Section 9.3(a) of the Credit Agreement is hereby amended by deleting
(S)9.3(a) in its entirety and restating it as follows:
(a) make capital expenditures or incur Indebtedness in respect of
capitalized leases which in the aggregate and on a combined basis exceed
(i) $5,000,000 for the fiscal year ending July 31, 1999; and (ii)
$6,000,000 in any fiscal year thereafter.
(S)6. Amendment to Section 10 of the Credit Agreement. Section 10(f) of
-----------------------------------------------
the Credit Agreement is hereby by deleting (S)10(f) in its entirety and
restating it as follows:
(f) the Borrowers or any of their Subsidiaries shall be in default (after
any applicable period of grace or cure period) under any agreement or
agreements evidencing Indebtedness owing to any Bank or any affiliates of
any Bank, to the Seller, to any other Person in excess of $500,000 in the
aggregate principal amount, or any Subordinated Debt, or shall fail to pay
such Indebtedness when due, or within any applicable period of grace, or
the holders of all or any part of the Subordinated Debt shall accelerate
the
-5-
maturity of all or any part of the Subordinated Debt or the Subordinated
Debt shall be (or shall be required at such time to be) prepaid, redeemed
or repurchased in whole or in part, except if such prepayment, redemption
or repurchase is made not in cash but solely in shares of the Borrower's
capital stock pursuant to the express conversion provisions set forth in
any document evidencing the Subordinated Debt, or the Borrowers or any of
their Subsidiaries shall be or become required under the terms of any of
the Subordinated Debt to prepay, redeem or repurchase (or shall be or
become required thereunder to offer to prepay, redeem or repurchase),
except if such prepayment, redemption or repurchase is made not in cash but
solely in shares of the Borrower's capital stock pursuant to the express
conversion provisions set forth in any document evidencing the Subordinated
Debt, all or any part of the Subordinated Debt;
(S)7. Conditions to Effectiveness. This Amendment shall not become
---------- -- -------------
effective until the Agent shall have received the following:
(a) a counterpart of this Amendment executed by the Borrowers, the
Subsidiary Guarantor, the Agent and the Banks;
(b) duly executed and delivered replacement Revolving Credit Notes and
Term Notes for each of the Banks;
(c) duly executed and delivered Security Agreement and all UCC-1 financing
statements and similar documents necessary to perfect the Agent's security
interest in all assets of the New Borrower, all to be in form and substance
satisfactory to the Agent;
(d) evidence satisfactory to the Agent and the Banks that all corporate
action necessary for the valid execution, delivery and performance by the
Borrowers of the Credit Agreement as amended by this Amendment and the other
Loan Documents to which it is or is to become a party have been duly and
effectively taken;
(e) a certification from a duly authorized officer of each Existing
Borrower to the effect that each of its charter or other incorporation documents
and its bylaws delivered to the Agent and the Banks in connection with the entry
into the Credit Agreement are true and correct copies of such documents as in
effect on the effective date hereof and, with respect to the New Borrower, its
charter or other incorporation documents certified to be true and complete as of
the date of certification by the Secretary of State or other appropriate
governmental official of the New Borrower's jurisdiction of organization, which
date of certification shall be no more than ten (10) days before the effective
date hereof and its bylaws as in effect on such date, certified by a duly
authorized officer of the New Borrower to be true and complete on the effective
date hereof;
-6-
(f) an incumbency certificate from each Borrower, dated the effective date
hereof, signed by a duly authorized officer of such Borrower and giving the name
and bearing the specimen signature of each individual who shall be authorized to
(i) sign, in the name and on behalf of the such Borrower, this Amendment and
each of the Loan Documents to which it is or is to become a party, (ii) make
Loan Requests and submit Letter of Credit Applications and (iii) give notices
and to take other action on its behalf under the Loan Documents;
(g) Each of the Banks shall have received from ▇▇▇▇▇▇ and Dodge LLP,
counsel to the Borrowers, a favorable legal opinion addressed to the Agent and
the Banks dated as of the effective date hereof, in form and substance
satisfactory to the Agent; and
(h) payment in cash of an amendment fee in the aggregate amount of
$30,000, which amendment fee shall be for the pro rata accounts of the Banks.
(S)8. Ratification and Joinder by New Borrower. The Borrowers, the Banks
----------------------------------------
and the Agent agree that, from and after the date on which all of the conditions
precedent set forth in (S)7 hereof shall have been satisfied, (a) the New
Borrower shall be a party to the Credit Agreement with all of the rights and
joint and several obligations of a Borrower thereunder, including without
limitation, the right to borrow Loans and to request Letters of Credit, subject
to the terms and conditions of the Credit Agreement; (b) the New Borrower agrees
to be bound by all of the terms, conditions and covenants of the Credit
Agreement and the other Loan Documents as though the New Borrower had been an
original party thereto and agrees to perform all of the obligations of a
Borrower under, and to be bound in all respects by the terms of, the Credit
Agreement applicable to a Borrower party thereto, including without limitation
the absolute and unconditional joint and several liability for, and promise to
pay and perform all of the Obligations owing from time to time to the Banks and
the Agent as provided in the Loan Documents; and (c) the New Borrower hereby
acknowledges and agrees that the representations and warranties set forth in
(S)7(a)-(c), (S)7(f)-(i) and (S)7(k)-(n) of the Credit Agreement are true and
correct in all material respects as to the undersigned as of the date hereof,
except to the extent of changes resulting from transactions contemplated or
permitted by the Credit Agreement and the other Loan Documents, and to the
extent that such representations and warranties relate expressly to an earlier
date.
(S)9. Representations and Warranties. Each of the Borrowers 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
------------------------------------------------------
representations and warranties of each of the Borrowers 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
-7-
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 Borrowers or the Subsidiary Guarantor, or to the
extent that such representations and warranties relate expressly to an
earlier date or were otherwise disclosed in writing to the Banks on or
prior to the date hereof.
(b) Ratification, Etc. Except as expressly amended hereby, the Credit
------------ ----
Agreement, the Security Documents and all other 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
--------------
Borrowers and the Subsidiary Guarantor of this Amendment and the
performance by each of the Borrowers 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 Borrowers and the Subsidiary
Guarantor and have been duly authorized by all necessary corporate action
on the part of the Borrowers and the Subsidiary Guarantor.
(d) Enforceability of Obligations. This Amendment and the Credit
-------------- -- -----------
Agreement as amended hereby constitute the legal, valid and binding
obligations of the Borrowers and the Subsidiary Guarantor enforceable
against the Borrowers 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
-- -------
continuing, and no Default or Event of Default will exist after execution
and delivery of this Amendment.
(S)10. No Other Amendments or Waivers. Except as expressly provided in
-- ----- ---------- -- -------
this Amendment, all of the terms and conditions of the Credit Agreement and the
other Loan Documents remain in full force and effect.
(S)11. Execution in Counterparts. This Amendment may be executed in any
--------- -- ------------
number of counterparts, each of which shall be deemed an original, but which
together shall constitute one instrument.
-8-
(S)12. Expenses. Pursuant to (S)14 of the Credit Agreement, all costs and
--------
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 Borrowers whether or not the transactions contemplated by this Amendment are
consummated.
(S)13. Miscellaneous. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
-------------
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.
-9-
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as a
document under seal as of the date first above written.
▇▇▇▇▇▇▇▇▇.▇▇▇ CORPORATION
By:
----------------------------------
Title:
INSOLUTIONS INCORPORATED
By:
----------------------------------
Title:
ON-DEMAND SOLUTIONS, INC.
By:
----------------------------------
Title:
PACIFIC DIRECT MARKETING CORP.
By:
----------------------------------
Title:
BANKBOSTON, N.A., Individually
and Agent
By:
----------------------------------
Title:
IMPERIAL BANK
-10-
By:
----------------------------------
Title:
-11-
RATIFICATION OF GUARANTY
The undersigned guarantor hereby acknowledges and consents to the foregoing
First Amendment as of March 16, 1999, and agrees that the Guaranty dated as of
October 30, 1999 from CMGI, Inc. in favor of the Agent and each of the Banks
remains in full force and effect, and the undersigned confirms and ratifies all
of its obligations thereunder.
CMGI, INC.
By:
----------------------------------
Title: