EXHIBIT 10.2
SCHEDULE
dated as of January 15, 1999
to the
Master Agreement
dated as of January 15, 1999
between
BankBoston, N.A. ("Bank") and CMGI, Inc. (the "Counterparty")
Part 1
------
Termination Provisions
----------------------
In this Agreement:
(1) "Specified Entity":
(a) means, in relation to Bank, none, and
(b) means, for purposes of Sections 5(a)(v), 5(a)(vi), 5(a)(vii) and
5(b)(ii) in relation to the Counterparty, all wholly-owned
subsidiaries of the Counterparty, including, without limitation,
Engage Technologies, Inc., Saleslink Corporation, Insolutions
Incorporated and Pacific Direct Marketing Corp.
(2) "Specified Transaction" will have the meaning specified in Section 12 of
this Agreement.
(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 Amended and
Restated Revolving Credit and Term Loan Agreement, dated as of June
11, 1998, among the Bank, Saleslink Corporation, Insolutions
Incorporated, Pacific Direct Marketing Corp., and the other lending
institutions set forth on Schedule I thereto, and Bank as Agent as
amended, modified or supplemented from time to time.
(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.
1
(4) "Termination Currency" means United States Dollars.
(5) The "Credit Event Upon Merger" provisions of Section 5b(ii) of the
Agreement will apply to Bank and the Counterparty.
(6) For purposes of Section 5(b)(iii), any default by the Counterparty on its
obligations under the Repurchase Agreement, dated as of January 15, 1999,
between the Counterparty and Long Lane Master Trust, shall constitute an
Additional Termination Event for which the Counterparty shall be the
Affected Party.
(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.
2
Part 2
------
Agreement to Deliver Documents
------------------------------
For the purpose of Section 4(a), each party agrees to deliver the following
documents, as applicable.
Party required to Form/Document Certificate Date by which
deliver document ------------------------- to be delivered
---------------- ------------
Counterparty An executed United States Upon execution
Internal Revenue Service of this
form W-9 (or any successor Agreement
thereto).
Party required Form/Document Date by which Covered by
to deliver ------------- to be delivered Section 3(d)
document ------------ Representation
-------- --------------
Counterparty A certificate of an authorized Upon execution Yes
and Bank officer for such party of this
certifying the authority, Agreement and
names and true signatures of as deemed
the officers signing this necessary for
Agreement and each any further
Confirmation reasonably documentation.
satisfactory in form and
substance to each party.
Counterparty Certified copies of Upon execution Yes
documents evidencing each of this
action taken by Counterparty Agreement.
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 Promptly upon Yes
statements prepared in request.
accordance with generally
accepted accounting
principles in the United
States.
Counterparty Quarterly unaudited financial Promptly upon Yes
statements prepared in request.
accordance with generally
accepted accounting
principles in the United
States.
3
Counterparty A written opinion of legal Upon execution No
counsel to Counterparty of this
reasonably satisfactory in Agreement if
form and substance to Bank. requested and as
deemed
necessary.
Counterparty Such other documents as Promptly upon Yes
Bank may reasonably request request.
in connection with each
transaction.
Part 3
------
Miscellaneous
-------------
(1) Governing Law. This Agreement will be governed by and construed in
-------------
accordance with the laws of the State of New York without reference to
choice of law doctrine.
(2) Notices.
-------
(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 Section 5 or 6 shall be sent to the address,
telex number or facsimile number specified below.
BankBoston, N.A.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
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:
CMGI, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telex:
Answerback:
Facsimile No.: (000)000-0000
(3) Netting of Payments. Section 2(c)(ii) of this Agreement will apply with
-------------------
respect to all Transactions under this Agreement.
4
(4) Credit Support Documents
------------------------
With respect to this Agreement, Credit Support Document means the ISDA
Credit Support Annex, dated the date hereof, between the parties hereto.
(5) Credit Support Provider
-----------------------
None.
Part 4
------
Other Provisions
----------------
(1) ISDA Definitions. Reference is hereby made to the 1991 ISDA Definitions
----------------
(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
-------
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 (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 estimated 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.
-----------------
(4) Severability. In the event any one or more of the provisions contained in
------------
this Agreement should be held invalid, illegal, or unenforceable in any
respect, the
5
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
------------
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;
(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;
(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
6
(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
--------------------
right to trial by jury in any proceedings arising out of or relating to
this Agreement or any transaction contemplated hereby.
(7) Confidentially. The existence of this Agreement, its contents and the
--------------
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.
(8) Further Agreements of Counterparty. The Counterparty agrees that until the
---------------------------------
termination of this Agreement and the satisfaction in full of the
Counterparty's obligations hereunder, the Counterparty will, and will cause
each of its wholly-owned subsidiaries to comply with, its obligations as
set forth throughout this Agreement and;
(a) to furnish the Bank (i) as soon as available but in any event
within ninety (90) days after the close of each fiscal year, the
Counterparty's audited consolidated and consolidating Financials
for such fiscal year, certified by the Counterparty's accountants,
and the Counterparty's consolidating Financials for such fiscal
period; (ii) as soon as available but in any event within forty-
five (45) days after the end of each fiscal quarter of the
Counterparty, the Counterparty's unaudited consolidated and
consolidating Financials for such quarter, certified by its chief
financial officer; (iii) together with the quarterly and annual
audited Financials, a certificate of the Counterparty setting forth
computations demonstrating compliance with the Counterparty's
financial covenants set forth in Section 8(b) hereof, and
certifying that no Event of Default or Termination Event has
occurred hereunder, or if it has the actions taken by the
Counterparty with respect thereto; (iv) within forty-five (45) days
after the end of each fiscal quarter or at such earlier time as the
Bank may request, a certificate of the Counterparty setting forth
computations demonstrating compliance with Section 4(f) of the
Confirmation hereof as
7
of the date thereof which shall also set forth in specific detail the
amount of cash and/or equity shares maintained for purposes of
compliance with Section 4(f); (v) contemporaneously with the delivery
thereof, copies of all accountants' management letters delivered to
the Counterparty or any of its wholly-owned subsidiaries; and (vi)
from time to time such other financial data and information as the
Bank may request; and
(b) For the purposes of Section 8(a) hereof, the following terms shall
have the meaning set forth below:
(i) "Financials" mean in respect of any period, the consolidated
balance sheet of the Counterparty and its wholly-owned
subsidiaries as at the end of such period, and the related
statement of income and consolidated statement of cash flow for
such period, each setting forth in comparative form the figures
for the previous comparable fiscal period, all in reasonable
detail and prepared in accordance with GAAP; and
(ii) "GAAP" means generally accepted accounting principles consistent
with those adopted by the Financial Accounting Standards Board
and its predecessor, generally, as in effect from time to time.
(c) For the purpose of Section 8(a) hereof, Section 5(a)(ii) of the Master
Agreement is hereby amended by deleting the words "thirtieth day" in
the last line thereof and inserting "five Business Days" in lieu
thereof.
Please confirm your agreement to the terms of the foregoing Schedule by
signing below.
BANKBOSTON, N.A.
By: /s/ Xxxx Xxxxxx
________________________
Name: Xxxx Xxxxxx
Title: Director
CMGI, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
________________________
Name:
Title:
8
