EXECUTION COPY
AMENDMENT TO WAIVER AND CREDIT AGREEMENTS
August 19, 2002
Cross Media Marketing Corporation
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Gentlemen:
Reference is made to the Credit Agreement among Cross Media Marketing
Corporation ("Cross Media"), Media Outsourcing, Inc. ("Media"), National
Syndications, Inc. and Preferred Consumer Marketing, Inc. (together with their
successors or assigns, the "Borrowers"), each of the lenders which is a
signatory thereto or which shall become a party thereto from time to time
(together with their respective successors and assigns, the "Lenders") and Fleet
National Bank, as agent for the Lenders (in such capacity, together with its
successors and assigns, the "Agent"), and as Issuing Agent, dated as of March
19, 2002 (as amended through the date hereof, the 'Credit Agreement') and each
of the other Facility Documents referred to therein. All capitalized terms used
herein shall have the meanings assigned thereto in the Credit Agreement, unless
otherwise defined herein.
Reference is also made to the Waiver, Consent and Amendment to Credit
Agreement, dated August 13, 2002 (the "Waiver Agreement"). The Borrowers have
advised the Agent and the Lenders that it may borrow only $1,650,000 of the New
Subordinated Indebtedness (as defined in the Waiver Agreement) and, therefore,
have requested an amendment to certain provisions of the Waiver Agreement and an
additional amendment to the Credit Agreement.
In consideration of executing this Amendment to Waiver and Credit
Agreements and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the undersigned hereby
agrees as follows:
1. Paragraph 1 of the Waiver Agreement is hereby amended in its entirety
to read as follows:
"Consent to Borrowing. Subject to the terms and conditions contained
herein, the Agent and the Lenders hereby agree that, notwithstanding
anything to the contrary contained in Section 8.01 of the Credit
Agreement, the Borrowers may incur sub-
ordinated indebtedness in an amount not to exceed $3,000,000 (the
"New Subordinated Indebtedness"), provided, that (a) the form and
substance of the promissory note representing the New Subordinated
Indebtedness is acceptable to the Agent and (b) the subordinated
lenders and the Borrowers enter into a subordination agreement in
form and substance acceptable to the Agent and the Lenders."
2. Paragraph 3 of the Waiver Agreement is hereby amended in its entirety
to read as follows:
"Subordinated Debt. Notwithstanding anything to the contrary
contained herein or in the Credit Agreement, the Borrowers may not
make any borrowings and the Lenders shall not be obligated to make
any Loans or issue any Letters of Credit under the Credit Agreement
until $1,500,000 of the New Subordinated Indebtedness has been
received by the Borrowers and the conditions set forth in Section 1
above have been satisfied and the fee payable to the Agent pursuant
to paragraph 9 of the Waiver Agreement, as amended hereby, shall
have been paid; provided, however, if Borrowers fail to receive
$1,500,000 of the New Subordinated Indebtedness as provided herein,
within twenty (20) days from the date hereof, an Event of Default
shall be deemed to have occurred and the Agent and the Lenders shall
have all of the remedies set forth in Section 10.2 of the Credit
Agreement."
3 Paragraph 9 of the Waiver Agreement is hereby amended in its entirety to
read as follows:
"Fees. In consideration of providing the waivers and consent in
accordance herewith, the Borrowers agree to pay to the Agent for the
pro-rata benefit of the Lenders a non-refundable fee of $75,000,
which shall be payable at the earlier of (a) receipt by the
Borrowers of the proceeds of $1,500,000 of the New Subordinated
Indebtedness or (b) twenty (20) days from the date hereof. The
Borrowers also acknowledge and agree that, pursuant to the Credit
Agreement, it is obligated to pay the Agent, upon demand, all
reasonable costs and expenses incurred in connection with the
preparation, execution and enforcement of the Waiver, Consent and
Amendment to Credit Agreement and this Amendment to Waiver and
Credit Agreements."
4. The definition of "Applicable Margin" in Section 1.1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
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"Applicable Margin" means a percentage equal to 0.75% with
respect to Revolving Credit Loans that are Prime Rate Loans, 3.25%
with respect to Revolving Credit Loans that are LIBOR Loans and
.375% with respect to the Commitment Fee."
5. Article II to the Credit Agreement is hereby amended by adding a new
Section 2.14 thereto, which shall read as follows:
"Section 2.14. Notwithstanding anything to the contrary contained
herein, without the written consent of the Agent and all of the
Lenders, the Borrowers may not make any borrowings and the Lenders
shall not be obligated to make Loans and the Issuing Lender shall
not be required to issue any Letters of Credit under the Credit
Agreement in excess of an aggregate of $29,950,000, as such amount
is reduced at the end of each Fiscal Quarter, commencing with the
Fiscal Quarter ending September 30, 2002, as set forth on Schedule A
attached to the Waiver Agreement, less the sum of (i) the aggregate
principal amount of the Revolving Credit Loans outstanding, (ii) the
aggregate amount available to be drawn on the outstanding Letters of
Credit and (iii) any amounts drawn under Letters of Credit but not
yet either reimbursed or converted to Loans as provided in the
Credit Agreement."
6. Defaults and Events of Default. The parties hereto acknowledge, confirm
and agree that the execution and delivery of this Amendment to Waiver and Credit
Agreements by the Agent, the Lenders and the Issuing Lender shall not be
construed to constitute a waiver or release by the Agent, the Lenders or the
Issuing Lender of any Default or Event of Default which has occurred prior to
the date hereof, or which exists as of the date hereof or may exist or occur at
any time after the date hereof, or of any rights or remedies of the Agent, the
Lenders or the Issuing Lender as a result thereof, under any of the Facility
Documents, applicable law or otherwise.
7. Conditions Precedent. This Amendment to Waiver and Credit Agreements
shall become effective upon delivery to the Agent of original counterpart
signature pages to this Amendment to Waiver and Credit Agreements, duly executed
and delivered by the Borrowers.
8. Release. In consideration of, among other things, the execution and
delivery of this Amendment to Waiver and Credit Agreements by the Agent, the
Lenders and the Issuing Lender, each of the Borrowers, on behalf of itself and
its successors and assigns (collectively, "Releasors"), hereby forever waives,
releases and discharges to the fullest extent permitted by law any and all
claims (including without limitation, crossclaims, counterclaims, rights of set
off and recoupment, causes of action, demands, suits, costs, expenses and
damages (collectively, the "Claims")), that any Releasor now has or hereafter
may have, of whatsoever nature and kind, whether known or unknown, whether now
existing or hereafter arising, whether arising at law or in equity, against any
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or all of the Agent, the Lenders and the Issuing Lender and their respective
affiliates, shareholders and "controlling persons" (within the meaning of the
federal securities laws), and their respective successors and assigns and each
and all of the officers, directors, employees, agents, attorneys, consultants
and other representatives of each of the foregoing (collectively, the
"Releasees"), based in whole or in part on facts, whether or not now known,
existing on or before the execution of this Amendment to Waiver and Credit
Agreements. In entering into this Amendment to Waiver and Credit Agreements, the
Borrowers have consulted with, and been represented by, legal counsel and
expressly disclaim any reliance on any representations, acts or omissions by any
of the Releasees and hereby agree and acknowledge that the validity and
effectiveness of the release set forth above do not depend in any way on any
such representations, acts and/or omissions or the accuracy, completeness or
validity hereof. The provisions of this paragraph 8 shall survive the
termination of the Credit Agreement and the other Facility Documents and payment
in full of the Obligations.
9. Governing Law. This Amendment to Waiver and Credit Agreements and the
rights and obligations hereunder of each of the parties hereto shall be governed
by and interpreted and determined in accordance with the laws of the State of
New York.
10. Binding Effect. This Amendment to Waiver and Credit Agreements shall
be binding upon and inure to the benefit of each of the parties hereto and their
respective successors and assigns.
11. Severability. Any provision of this Amendment to Waiver and Credit
Agreements held by a court of competent jurisdiction to be invalid or
unenforceable shall not impair or invalidate the remainder of this Amendment to
Waiver and Credit Agreements and the effect thereof shall be confirmed to the
provision so held to be invalid or unenforceable.
12. Counterparts. This Amendment to Waiver and Credit Agreements may be
executed in any number of counterparts, but all of such counterparts shall
together constitute but one and the same agreement. In making proof of this
Amendment to Waiver and Credit Agreements, it shall not be necessary to produce
or account for more than one counterpart thereof signed by each of the parties
hereto.
[Signature page to follow]
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If you are in agreement with the foregoing, please sign the enclosed
counterparts of this Agreement in the spaces provided below, whereupon this
Agreement, as so accepted, shall become a binding agreement between the parties
hereof.
FLEET NATIONAL BANK, As Agent
By:
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Name:
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Title:
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LENDERS:
FLEET NATIONAL BANK
By:
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Name:
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Title:
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KEYBANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK
By:
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Name:
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Title:
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SIGNATURE BANK
By:
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Name:
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Title:
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ISSUING LENDER:
FLEET NATIONAL BANK, as Issuing
Lender
By:
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Name:
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Title:
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READ AND AGREED TO:
BORROWERS:
CROSS MEDIA MARKETING CORPORATION
By:
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Name:
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Title:
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MEDIA OUTSOURCING, INC.
By:
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Name:
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Title:
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NATIONAL SYNDICATIONS, INC.
By:
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Name:
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Title:
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PREFERRED CONSUMER MARKETING, INC.
By:
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Name:
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Title:
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