Exhibit 10.2
SCHEDULE
to the
Master Agreement
dated as of January 13, 1998
between
BankBoston, N.A. and CMG Information Services, Inc.
(the "Counterparty")
("Bank")
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Part 1
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Termination Provisions
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In this Agreement:
(1) "Specified Entity":
(a) means, in relation to Bank, none, and
(b) means, in relation to the Counterparty, all affiliates of the
Counterparty, including, without limitation, Direct Interactive Inc., Saleslink
Corporation, and Pacific Direct Marketing Corp.
(2) "Specified Transaction" will have the meaning specified in Section 12 of
this Agreement. Specified Transaction for purposes of clause (c) of the
definition thereof shall also mean the Repurchase Agreement, dated as of
January 13, 1998, between the Counterparty and Long Lane Master Trust.
(3) The "Cross Default" provisions of Section 5(a)(vi) will apply to Bank and
the Counterparty, and for such purpose:
(a) "Specified Indebtedness" means (i) with respect to either party
hereto, any obligation (whether present or future, contingent or
otherwise, as
principal or surety or otherwise) in respect of borrowed money and
(ii) with respect to the Counterparty, the Revolving Credit and Term
Loan Agreement, dated as of October 24, 1996 among the Bank, the
Counterparty, Saleslink Corporation, Pacific Direct Marketing Corp.,
and the other lending institutions set forth on Schedule I thereto.
(b) "Threshold Amount" means (i) in relation to Bank, an amount equal to 3
percent of the total stockholders' equity of Bank and (ii) in relation
to the Counterparty, U.S. $500,000.
(4) "Termination Currency" means United States Dollars.
(5) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) of the
Agreement will apply to Bank and the Counterparty.
(6) "Additional Termination Event" means for purposes of Section 5(c), any
termination by the Counterparty, at its sole discretion, upon delivery of
written notice to the Bank five Business Days prior to such termination.
(7) The "Automatic Early Termination" provisions of Section 6(a) will not apply
to either party.
(8) For purposes of computing amounts payable on early termination:
(a) Market Quotation will apply to this Agreement, and
(b) The Second Method will apply to this Agreement.
Part 2
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Agreement to Deliver Documents
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For the purpose of Section 4(a), each party agrees to deliver the following
documents, as applicable.
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Party required to Form/Document Certificate Date by which to
deliver document ------------------------- be delivered
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Counterparty An executed United States Upon execution
Internal Revenue Service form of this Agreement
W-9 (or any successor thereto).
Party required Form/Document Certificate Date by which to Covered by
to deliver ------------------------- be delivered Section 3(d)
document ------------ Representation
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Counterparty A certificate of an authorized Upon execution of Yes
and Bank officer for such party certifying the this Agreement
authority, names and true and as deemed
signatures of the officers signing necessary for any
this Agreement and each further
Confirmation reasonably documentation.
satisfactory in form and substance
to each party.
Counterparty Certified copies of documents Upon execution of Yes
evidencing each action taken by this Agreement.
Counterparty to authorize its
execution of this Agreement, and
each Confirmation, and the
performance of its obligations
hereunder as well as its bylaws
and articles of incorporation.
Counterparty Annual audited financial statements Promptly upon Yes
prepared in accordance with request.
generally accepted accounting
principles in the United States.
Counterparty Quarterly unaudited financial Promptly upon Yes
statements prepared in accordance request.
with generally accepted accounting
principles in the United States.
Counterparty A written opinion of legal counsel Upon execution of No
to Counterparty reasonably this Agreement if
satisfactory in form and substance requested and as
to Bank. deemed necessary.
Counterparty Such other documents as Bank Promptly upon Yes
may reasonably request in request.
connection with each transaction.
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Part 3
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Miscellaneous
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(1) Governing Law. This Agreement will be governed by and construed in
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accordance with the laws of the State of New York without reference to
choice of law doctrine.
(2) Notices.
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(a) In connection with Section 10, all notices to Bank shall, with respect
to any particular Transaction, be sent to the address, telex number or
facsimile number specified in the relevant Confirmation, and any
notice for purposes of Sections 5 or 6 shall be sent to the address,
telex number or facsimile number specified below.
BankBoston, N.A.
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Attention:
Telex:
Answerback:
Facsimile No.:
(b) In connection with Section 10, all notices to the Counterparty shall,
with respect to any particular Transaction, be sent to the address,
telex number or facsimile number specified in the relevant
Confirmation and any notice for purposes of Section 5 or 6 shall be
sent to the address, telex number or facsimile number specified below:
CMG Information Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telex:
Answerback:
Facsimile No.:
(3) Netting of Payments. Section 2(c)(ii) of this Agreement will apply with
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respect to all Transactions under this Agreement.
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(4) Credit Support Documents
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With respect to this Agreement, Credit Support Document means the ISDA
Credit Support Annex, dated the date hereof, between the parties hereto,
which shall provide credit support for the obligations of the Counterparty
to the Bank and which shall have an Independent Amount equal to
$23,000,000.
(5) Credit Support Provider
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None.
Part 4
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Other Provisions
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(1) ISDA Definitions. Reference is hereby made to the 1991 ISDA Definitions
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(the "ISDA Definitions") each as published by the International Swaps and
Derivatives Association, Inc., which are hereby incorporated by reference
herein. Any terms used and not otherwise defined herein which are
contained in the ISDA Definitions shall have the meaning set forth therein.
(2) Set-off. "Set-off" shall, for purposes of this Agreement and any Credit
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Support Document, have the meaning set forth in Section 12 and shall
include without limitation the rights in Section 6(f). Section 6 of this
Agreement is modified to include the following additional sub-clause (f):
"(f) Set-off. Any amount (the "Early Termination Amount") payable to one
party (the "Payee") by the other party (the "Payer") under Section
6(e), in circumstances where there is a Defaulting Party or one
Affected Party will, at the option of the party ("X") other than the
Defaulting Party or Affected Party (and without prior notice to same)
be reduced by its set-off against any amount(s) (the "Other Agreement
Amount") payable (whether at such time or in the future or upon the
occurrence of a contingency) by the Payee to the Payer (irrespective
of the place of payment or booking office of such obligation) under
any other agreement(s) between the Payee and the Payer or
instrument(s) or undertaking(s) issued or executed by one party to, or
in favor of, the other party
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(and the Other Agreement Amount(s) will be discharged promptly and in
all respects to the extent it is so set-off). X will give notice to
the other party of any set-off effected under this Section 6(f).
If an obligation is unascertained, X may in good faith estimate that
obligation and set-off in respect of the estimate, subject to the
relevant party accounting to the other when the obligation is
ascertained.
Nothing in this Section 6(f) shall be effective to create a charge or
other security interest. This Section 6(f) shall be without prejudice
and in addition to any right of set-off otherwise available to a party
(whether by operation of law, contract, or otherwise)."
(3) Calculation Agent. The Calculation Agent will be Bank.
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(4) Severability. In the event any one or more of the provisions contained in
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this Agreement should be held invalid, illegal, or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby. The parties shall endeavor, in good faith negotiations, to
replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
(5) Non-Reliance. In connection with the negotiation of the entering into, and
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the confirming of the execution of this Agreement, each Transaction, and
any other documentation relating to this Agreement to which the
Counterparty is a party or that the Counterparty is required by this
Agreement to deliver:
(i) the Counterparty is acting for its own account, and it has made its
own independent decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based upon
its own judgment and upon advice from such advisors as it has deemed
necessary;
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(ii) the Counterparty is not relying (for purposes of making any
investment decision or otherwise) upon any advice, counsel, or
representations (whether written or oral) of the other party to this
Agreement, each Transaction or such other documentation other than
the representations expressly set forth in this Agreement, and in any
Confirmation; it being understood that information and explanations
related to the terms and conditions of a Transaction shall not be
considered investment advice or a recommendation to enter into that
Transaction. No communication (written or oral) received from the
other party shall be deemed to be an assurance or guarantee as to the
expected results of that Transaction;
(iii) the Counterparty has consulted with its own legal, regulatory, tax,
business, investment, financial and accounting advisors to the extent
it has deemed necessary, and it has made its own investment, hedging
and trading decisions (including decisions regarding the suitability
of any Transaction pursuant to this Agreement) based upon any advice
from such advisors as it has deemed necessary and not upon any view
expressed by the other party to this Agreement, each Transaction or
such other documentation;
(iv) the Counterparty is capable of assessing the merits of and evaluating
and understanding (on its own behalf or through independent
professional advice), and it has a full understanding of all the
terms, conditions, and risks (economic and otherwise) of the
Agreement, each Transaction, and such other documentation and is
capable of assuming and willing to assume (financially and otherwise)
those risks;
(v) the Counterparty is entering into this Agreement, each Transaction,
and such other documentation for the purposes of managing its
borrowings or investments, hedging its underlying assets or
liabilities or in connection with a line of business and not for
purposes of speculation;
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(vi) the Counterparty is entering into this Agreement, each Transaction,
and such other documentation as principal, and not as agent or in any
other capacity, fiduciary or otherwise; and
(vii) the Bank (a) is not acting as a fiduciary or financial, investment or
commodity trading advisor for it; (b) has not given to the
Counterparty (directly or indirectly through any other person) any
assurance, guaranty or representation whatsoever as to the merits
(either legal, regulatory, tax, financial, accounting or otherwise)
of this Agreement, each Transaction, and such other documentation;
and (c) has not committed to unwind the Transactions.
(6) Waiver of Jury Trial. Each party hereby irrevocably waives any and all
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right to trial by jury in any proceedings arising out of or relating to
this Agreement or any transaction contemplated hereby.
(7) Confidentiality. The existence of this Agreement, its contents and the
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existence of and contents and all other instruments and documents relating
to this Agreement, and any information made available by one party to the
other party with respect to this Agreement or any Transaction hereunder is
confidential and shall not be discussed with or disclosed to any third
party (nor shall any public announcement or press release relating to this
Agreement or any Transaction hereunder be made by either party, except with
the prior written consent of the other party hereto), except for such
information (i) as may become generally available to the public, (ii) as
may be required or appropriate in response to any summons, or otherwise in
connection with any litigation or to comply with any applicable law, order,
regulation, ruling, or accounting disclosure rule or standard (iii) as may
be obtained from a non-confidential source that disclosed such information
in a manner that did not violate its obligations to the other party in
making such disclosure, or (iv) as may be furnished to that party's
auditors, attorneys, advisors, or financial institutions with which the
party has a written agreement or which are otherwise required to keep the
information that is disclosed in confidence.
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Please confirm your agreement to the terms of the foregoing Schedule by
signing below.
BANKBOSTON, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
CMG INFORMATION SERVICES, INC.
By:
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Name:
Title:
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Please confirm your agreement to the terms of the foregoing Schedule by
signing below.
BANKBOSTON, N.A.
By:
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Name:
Title:
CMG INFORMATION SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
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