EXHIBIT 10.34
SECOND AMENDMENT
TO
REVOLVING CREDIT AGREEMENT
Second Amendment dated as of April 9, 1998 to Revolving Credit Agreement
(the "Second Amendment"), by and among CMG INFORMATION SERVICES, INC., a
Delaware corporation (the "Borrower"), BANKBOSTON, N.A. (FORMERLY KNOWN AS THE
FIRST NATIONAL BANK OF BOSTON) and the other lending institutions listed on
Schedule 1 to the Credit Agreement (as hereinafter defined) (the "Banks"),
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amending certain provisions of Revolving Credit Agreement dated as of May 14,
1997 (as amended and in effect from time to time, the "Credit Agreement") by and
among the Borrower, the Banks and BankBoston, N.A. as agent for the Banks (the
"Agent"). Terms not otherwise defined herein which are defined in the Credit
Agreement shall have the same respective meanings herein as therein.
WHEREAS, the Borrower and the Banks have agreed to modify certain terms and
conditions of the Credit Agreement as specifically set forth in this Second
Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained 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 SECTION 1 OF THE CREDIT AGREEMENT. Section 1 of the
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Credit Agreement is hereby amended by inserting the following definition in the
appropriate alphabetical order:
Accipiter Acquisition. The merger of the Borrower's wholly-owned
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Subsidiary with and into Accipiter, Inc., with Accipiter, Inc. being the
surviving entity, all on such terms and conditions as are satisfactory to
the Agent.
(S)2. AMENDMENT TO SECTION 7.2 OF THE CREDIT AGREEMENT. Section 7.2 of
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the Credit Agreement is hereby amended as follows:
(a) Section 7.2(c)(iv) of the Credit Agreement is hereby amended by
inserting immediately after the words "Investments made by the Borrower in
compliance with its Investment Policy" the words "and Investments consisting of
acquisitions permitted by (S)7.2(e) hereof".
(b) Section 7.2(e) of the Credit Agreement is hereby amended by deleting
(S)7.2(e) in its entirety and restating it as follows:
(e) become party to a merger or sale-leaseback transaction, or to
effect any disposition of assets other than in the ordinary course, and
other than the sale of shares of a wholly-owned Subsidiary of the Borrower
so long as the net cash proceeds of such sale received by the Borrower are
equal to or greater than the carrying costs of the remaining shares of such
Subsidiary after giving effect to such sale, or to purchase, lease or
otherwise acquire assets other than in the ordinary course (with the
parties hereto hereby acknowledging that minority Investments by the
Borrower in CMG @ Ventures 1 and CMG @ Ventures II shall be considered
acquisitions of assets in the ordinary course); provided, however, the
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Borrower shall be permitted to acquire assets and/or stock of another
entity so long as (i) such entity is in the same or a similar line of
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business as the Borrower; (ii) other than in connection with the Accipiter
Acquisition, the Borrower has provided the Bank with five (5) Business Days
prior written notice of such acquisition, which notice shall include a
reasonably detailed description of such acquisition; (iii) the business
and/or entity to be acquired would not subject the Agent or any Bank to
regulatory or third party approvals in connection with the exercise of its
rights and remedies under this Agreement or the other Loan Documents; (iv)
other than in connection with the Accipiter Acquisition, the Borrower has
demonstrated to the satisfaction of the Agent and the Banks, based on a pro
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forma Compliance Certificate, compliance with (S)7.3 on a pro forma basis
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immediately prior to and after giving effect to any such acquisition; (v)
the business and assets so acquired in each such acquisition shall be
acquired by the Borrower free and clear of all liens and Indebtedness; and
(vi) the aggregate purchase price of all acquisitions permitted hereunder
does not exceed the greater of (1) $11,000,000 and (2) the aggregate
purchase price of the Accipiter Acquisition during the term of this
Agreement.
(S)3. AMENDMENT TO SECTION 7.3 OF THE CREDIT AGREEMENT. Section 7.3(a) of
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the Credit Agreement is hereby amended by deleting (S)7.3(a) in its entirety and
restating it as follows:
(a) make capital expenditures which in the aggregate and on a
consolidated basis exceed (i) $10,000,000 in the 1998 fiscal year; and (ii)
$3,700,000 in any fiscal year ending thereafter; provided, however, that if
during any fiscal year, other than the 1998 fiscal year, the amount of
capital expenditures permitted for that fiscal year is not so utilized,
such unutilized amount may be utilized in the next succeeding fiscal year,
but not in any subsequent year;
(S)4. CONDITIONS TO EFFECTIVENESS. This Second Amendment shall not become
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effective until the Agent receives a counterpart of this Second Amendment,
executed by the Borrower and the Banks.
(S)5. REPRESENTATIONS AND WARRANTIES. The Borrower hereby repeats, on and
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as of the date hereof, each of the representations and warranties made by it in
(S)5 of the Credit Agreement, and such representations and warranties remain
true 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 changes occurring in the ordinary course of business that
singly or in the aggregate are not materially adverse, and to the extent that
such representations and warranties relate expressly to an earlier date),
provided, that all references therein to the Credit Agreement shall refer to
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such Credit Agreement as amended hereby. In addition, the Borrower hereby
represents and warrants that the execution and delivery by the Borrower of this
Second Amendment and the performance by the Borrower of all of its agreements
and obligations under the Credit Agreement as amended hereby are within the
corporate authority of each the Borrower and has been duly authorized by all
necessary corporate action on the part of the Borrower.
(S)6. RATIFICATION, ETC. Except as expressly amended hereby, the Credit
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Agreement and all 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 and this Second Amendment shall be read and
construed as a single agreement. All references in the Credit Agreement or any
related agreement or instrument to the Credit Agreement shall hereafter refer to
the Credit Agreement as amended hereby.
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(S)7. NO WAIVER. Nothing contained herein shall constitute a waiver of,
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impair or otherwise affect any Obligations, any other obligation of the Borrower
or any rights of the Agent or the Banks consequent thereon.
(S)8. COUNTERPARTS. This Second Amendment may be executed in one or more
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counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
(S)9. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF COMMONWEALTH OF MASSACHUSETTS (WITHOUT
REFERENCE TO CONFLICT OF LAWS).
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IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as a document under seal as of the date first above written.
CMG INFORMATION SERVICES, INC.
By:
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Title:
BANKBOSTON, N.A.
By:
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Title:
