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EXHIBIT 4.5
AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇ dated as of September 1, 1999, among CLIENTLOGIC
HOLDING CORPORATION, a corporation duly organized and validly existing under the
laws of the State of Delaware (the "Company"); each of the Subsidiaries of the
Company identified under the caption "Subsidiary Guarantors" on the signature
pages hereto (individually, a "Subsidiary Guarantor" and, collectively, the
"Subsidiary Guarantors" and, collectively with the Company, the "Obligors"); the
lender that is a signatory hereto (the "Lender"); and TORONTO DOMINION (TEXAS),
INC., a Delaware corporation, as agent for the Lender (in such capacity,
together with its successors in such capacity, the "Agent").
The Company, the Subsidiary Guarantors, the Lender and the Agent are
parties to a Credit Agreement dated as of May 25, 1999 (as heretofore modified
and supplemented and in effect on the date hereof, the "Credit Agreement"),
providing, subject to the terms and conditions thereof, for loans to be made by
said Lender to the Company in an aggregate principal amount not exceeding
$60,000,000. The Company, the Subsidiary Guarantors, the Lender and the Agent
wish to amend the Credit Agreement in certain respects, and, accordingly, the
parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this Amendment
No. 2, terms defined in the Credit Agreement are used herein as defined therein.
Section 2. Amendments. Subject to the satisfaction of the conditions
precedent specified in Section 4 below, but effective as of the date hereof, the
Credit Agreement shall be amended as follows:
2.01. Definitions -- Section 1.01 of the Credit Agreement (Definitions)
shall be amended by adding the following new definitions (to the extent not
currently included in the Credit Agreement) and inserting the same in the
appropriate alphabetical locations, and by amending the following definitions
(to the extent currently included in the Credit Agreement) as follows:
"InsLogic Holding" shall mean ▇▇▇▇▇▇▇▇.▇▇▇ Holding
Corporation, a Delaware corporation.
"InsLogic Asset Transfer" shall mean, collectively, the
following transactions: (a) the transfer by ClientLogic Corporation to
InsLogic Holding of the property described on Schedule A hereto, so
long as the net book value of all such property does not exceed
$3,000,000, (b) ClientLogic Corporation making a dividend payment to
the Company consisting of all of the shares of capital stock of
InsLogic Holding, (c) the Company making a dividend payment to its
shareholders consisting of a portion of the shares of capital stock of
InsLogic Holding, (d) the Company making a capital contribution to its
Subsidiary 1293219 Ontario Inc. consisting of the balance of such
shares of capital stock of InsLogic Holding (the "Remaining Shares"),
(e) 1293219 Ontario Inc. making a capital contribution to its
Subsidiary 1293220 Ontario Inc. consisting of the
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Remaining Shares, and (f) 1293220 Ontario Inc. making a dividend
payment to is preferred shareholders consisting of the Remaining
Shares.
"Total Revenue" shall mean, for any period, the net fee
revenue of the Company and the Subsidiary Guarantors for such period.
Except for the exclusion of net fee revenue of Subsidiaries of the
Company that are not Subsidiary Guarantors, "net fee revenue" shall be
calculated in the same manner as the net fee revenue set forth on the
financial statements of the Company as at September 30, 1999 heretofore
furnished to the Lender.
2.02. Treatment of InsLogic Holding -- The following sentence shall be
added to the definition of "Subsidiary" in Section 1.01 of the Credit Agreement:
"The foregoing provisions of this definition notwithstanding, none of
InsLogic Holding and its Subsidiaries shall be deemed to be
Subsidiaries of the Company for any purpose of this Agreement (except
that the capital stock of InsLogic Holding shall be subject to the Lien
of the Security Agreement) and, accordingly, shall not be, or be
required to be, Subsidiary Guarantors or Obligors."
2.03. InsLogic Asset Transfer--
(a) The parenthetical clause in Section 2.10(c) of the Credit Agreement
(Mandatory Prepayment Upon Sale of Assets) shall be amended in its entirety to
read as follows:
"(other than a Disposition permitted under clauses (i) through (ix), or
clause (xi), of Section 9.05(b) hereof)"
(b) Section 9.05 of the Credit Agreement (Prohibition of Fundamental
Changes) shall be amended by deleting the word "and" at the end of clause
(b)(ix) thereof, replacing the period at the end of clause (x) thereof with ";
and" and by adding the following new clause (xi):
"(xi) the InsLogic Asset Transfer."
(c) Section 9.09(a) shall be amended (prior to clause (i) thereof)
shall be amended in its entirety to read as follows:
"(a) The Company will not, and will not permit any of its
Subsidiaries to, declare or make any Dividend Payment at any time,
provided that (x) the Company may make the Dividend Payments
contemplated by the InsLogic Asset Transfer and (y) the Company and its
Subsidiaries may make additional Dividend Payments so long as:"
(d) Section 9.09(b)(iv) of the Credit Agreement shall be amended by
adding the following at the end thereof:
", and to the extent contemplated by the InsLogic Asset Transfer."
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2.04. Amendment to Limitation on 1999 Capital Expenditures -- Section
9.10(a)(i) of the Credit Agreement shall be amended by replacing the figure
"$20,000,000" therein with the figure "$25,000,000."
2.05. Amendment to Total Debt to Cash Flow Ratio Covenant -- The table
in Section 9.14 of the Credit Agreement shall be amended in its entirety to read
as follows:
"Period Total Debt to Cash Flow Ratio
------- -----------------------------
March 31, 1999 to September 30, 1999 6.50 to 1
January 1, 2001 to December 31, 2001 5.00 to 1
January 1, 2002 and thereafter 4.00 to 1"
2.06. Amendment to Cash Flow to Debt Service Ratio Covenant -- Section
9.15 of the Credit Agreement shall be amended in its entirety to read as
follows:
"9.15 Cash Flow to Debt Service Ratio. The Company will not
permit the Cash Flow to Debt Service Ratio as at the last day of any
fiscal quarter of the Company occurring during any of the periods set
forth below to be less than the ratio set forth below opposite such
period:
"Period Cash Flow to Debt Service Ratio
------- -------------------------------
March 31, 1999 to September 30, 1999 1.25 to 1
January 1, 2001 and thereafter 1.25 to 1"
2.07. Amendment to Cash Flow to Interest Expense Ratio Covenant --
Section 9.16 of the Credit Agreement shall be amended in its entirety to read as
follows:
"9.16 Cash Flow to Interest Expense Ratio. The Company will
not permit the Cash Flow to Interest Expense Ratio as at the last day
of any fiscal quarter of the Company occurring during any of the
periods set forth below to be less than the ratio set forth below
opposite such period:
"Period Cash Flow to Interest Expense Ratio
------- -----------------------------------
March 31, 1999 to September 30, 1999 2.50 to 1
October 1, 1999 to December 31, 2000 1.00 to 1
January 1, 2001 and thereafter 2.50 to 1"
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2.08. Treatment of Arrangements between InsLogic and the Company -- The
following sentence shall be added to the end of Section 9.12 of the Credit
Agreement (Transactions with Affiliates):
"For all purposes of this Section 9.12, each of InsLogic Holding and
its Subsidiaries shall be deemed to be an Affiliate of the Company and,
accordingly, transactions between InsLogic Holding or any of its
Subsidiaries and the Company or any of its Subsidiaries shall be
subject to the, provisions of this Section 9.12."
2.09. New Total Revenue Covenant -- A new Section 9.19 shall be added
to the Credit Agreement to read as follows:
"9.19 Minimum Total Revenue. The Company will rot permit Total
Revenue to be less than the following respective amounts for the
following respective periods:
"Period Minimum Amount
------- --------------
January 1, 1999 through December 31, 1999 $ 142,500,000
January 1, 2000 through March 31, 2000 $ 40,200,000
January 1, 2000 through June 30, 2000 $ 84,600,060
January 1, 2000 through September 30, 2000 $ 131,500,000
January 1, 2000 through December 31, 2000 $ 188,600,000"
2.10. New Cash Flow Covenant -- A new Section 9.20 shall be added to
the Credit Agreement to read as follows:
"9.20 Minimum Cash Flow. The Company will not permit Adjusted
Cash Flow to be less than the following respective amounts for the
following respective periods:
"Period Minimum Amount
------- --------------
January 1, 1999 through December 31, 1999 $ 10,000,000
January 1, 2000 through March 31, 2000 $ 850,000
January 1, 2000 through June 30, 2000 $ 3,700,060
January 1, 2000 through September 30, 2000 $ 6,850,000
January 1, 2000 through December 31, 2000 $ 15,250,000"
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2.11. New Covenants as Events of Default -- Section 10(d) of the Credit
Agreement shall be amended by replacing the reference to "9.16 or 9.17 hereof"
with a reference to "9.16, 9.17, 9.19 or 9.20 hereof".
Section 3. Representations and Warranties. Each of the Obligors
represents and warrants to the Lender that (a) the representations and
warranties set forth in Section 8 of the Credit Agreement are true and complete
on the date hereof as if made on and as of the date hereof and as if each
reference in said Section 8 to "this Agreement" included reference to this
Amendment No. 2 and (b) as of the date hereof, no Default is continuing.
Section 4. Conditions Precedent. As provided in Section 2 above, the
amendments to the Credit Agreement set forth in said Section 2 shall become
effective, as of the date hereof, upon the satisfaction of the following
conditions precedent:
4.01. Execution by All Parties. This Amendment No. 2 shall have been
executed and delivered by each of the parties hereto.
4.02 InsLogic Documents. The Agent shall have received copies of each
agreement or other instrument evidencing or governing the InsLogic Asset
Transfer.
Section 5. Pledge of Stock of InsLogic Holdings. The Lender and the
Agent agree that the capital stock of InsLogic Holding shall not be required to
be pledged to the Agent under the Security Agreement, provided that if the
transactions contemplated by clauses (b) through (f) of the definition of
"InsLogic Asset Transfer" (the "Distributions") do not occur on or prior to
March 31, 2000, such capital stock shall be subject to the Lien of the Security
Agreement and the Company shall furnish to the Agent each of the certificates
representing the shares of capital stock of InsLogic Holdings held by the
Company or any of its Subsidiaries, together with stock powers duly executed in
blank. In the event that the Distributions occur after March 31, 2000, the Agent
shall release such capital stock from the Lien of the Security Agreement to
enable the Distributions to occur.
Section 6. Miscellaneous. Except as herein provided, the Credit
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 2 may be executed in any number of counterparts, all of which taken together
shall constitute one and the same amendatory instrument and any of the parties
hereto may execute this Amendment No. 2 by signing any such counterpart. This
Amendment No. 2 shall be governed by, and construed in accordance with, the law
of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2
to be duly executed and delivered as of the day and year first above written.
CLIENTLOGIC HOLDING CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇▇▇▇▇▇▇,
Chief Financial Officer
SUBSIDIARY GUARANTORS
LCS INDUSTRIES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇▇▇▇▇▇▇,
Chief Financial Officer
CATALOG LIQUIDATORS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇▇▇▇▇▇▇,
Chief Financial Officer
LCS CANADA, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇▇▇▇▇▇▇,
Chief Financial Officer
CATALOG RESOURCES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇▇▇▇▇▇▇,
Chief Financial Officer
SPEC HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇▇▇▇▇▇▇,
Chief Financial Officer
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THE SPECIALISTS LTD.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇▇▇▇▇▇▇,
Chief Financial Officer
COMPUTER MARKETING SYSTEM INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇▇▇▇▇▇▇,
Chief Financial Officer
CLIENTLOGIC CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇▇▇▇▇▇▇,
Chief Financial Officer
CLIENTLOGIC INTERNATIONAL HOLDING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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LENDER
ONEX CLIENTLOGIC FINANCE LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇,
Director
AGENT
TORONTO DOMINION (TEXAS), INC., as Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
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SCHEDULE A
Description of Property Being Transferred
Contract Rights
Asset Purchase Agreement, dated as of March 19, 1999, among Canadian Access
Insurance Services Inc., an Ontario corporation ("Seller"), the stockholders of
Seller listed on Annex A thereto, and CustomerOne Corporation, a Delaware
corporation (now known as ClientLogic Corporation).
Computer Program End-User License Agreement, dated as of March 17, 1999, between
AXINT Technologies Corporation, a Massachusetts corporation and CustomerOne
Corporation, a Delaware corporation (now known as ClientLogic Corporation).
Custom Modification Agreement, dated as of March 19, 1999, between AXINT
Technologies Corporation, a Massachusetts corporation, and CustomerOne
Corporation, a Delaware corporation (now known as ClientLogic Corporation).
Shared Services Agreement dated as of March 19, 1999, between CustomerOne
Corporation, a Delaware corporation (now known as ClientLogic Corporation), and
North Direct Response, Inc., an Ontario corporation.
Commission Agreement, dated as of March 19, 1999, among CustomerOne Corporation,
a Delaware corporation (now known as ClientLogic Corporation), ▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, and AXINT Technologies Inc., a Massachusetts corporation.
Agreement, dated as of March 19, 1999, between AXINT Technologies Inc., a
Massachusetts corporation, and CustomerOne Corporation, a Delaware corporation
(now known as ClientLogic Corporation).
Consulting, Confidentiality and Noncompetition Agreement, dated as of March 19,
1999, between CustomerOne Corporation, a Delaware corporation (now known as
ClientLogic Corporation), and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
Consulting, Confidentiality and Noncompetition Agreement, dated as of March 19,
1999, between CustomerOne Corporation, a Delaware corporation (now known as
ClientLogic Corporation), and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
License Agreement, dated March 16, 1999, between Nova Data Systems, a
corporation organized under the laws of Canada, and ClientLogic Corporation, a
corporation organized under the laws of Delaware.
License Agreement, dated April 30, 1999, between Pivotal Software, Inc., a
corporation organized under the laws of Canada, and CustomerOne Corporation, a
Delaware corporation (now known as ClientLogic Corporation).
Tangible Personal Property
Miscellaneous Assets