Exhibit 10.4
LIMITED WAIVER AGREEMENT
This LIMITED WAIVER AGREEMENT (this "Agreement"), dated as of this
16th day of May, 2001, between Coast Business Credit(R), a division of Southern
Pacific Bank ("Coast") and Media Outsourcing, Inc., formerly known as Direct
Sales International, Inc. ("Borrower"), is made in reference to the following
facts:
A. Borrower previously entered into a Loan and Security Agreement
with Coast dated as of January 28, 2000, as amended ( the "Loan Agreement").
Unless otherwise defined, all capitalized terms used herein shall have the
meanings given them in the Loan Agreement.
B. Borrower has requested that Coast waive Borrower's breach of the
tangible net worth covenant under the Loan Agreement as described below. Coast
is willing to waive such breach on the terms and subject to the conditions set
forth herein.
NOW THEREFORE, in consideration of the foregoing recitals and the
terms and conditions hereof, the parties do hereby agree as follows, effective
as of the date set forth above:
1. Limited Waiver. Borrower acknowledges that as of December 31,
2000, Borrower was in default of the Tangible Net Worth covenant in Paragraph 3
of Section 8.1 of the Schedule to the Loan Agreement. Borrower further
acknowledges that the foregoing default constitute an Event of Default under the
Loan Agreement. Coast hereby waives such Event of Default for the quarter ended
December 31, 2000, subject to the terms and conditions set forth below.
(a) The foregoing waiver is a one-time waiver and not a continuing
waiver, and shall apply only to the matter and time period specifically
set forth in this Paragraph 1. Without limiting the generality of the
foregoing, this waiver shall not apply to any future failure by Borrower
to comply with Paragraph 3 of Section 8.1 of the Schedule to the Loan
Agreement, nor to any failure by Borrower to comply with any other
provision of the Loan Agreement at any time.
(b) Coast reserves all of its rights and remedies with respect to
all other obligations of Borrower under the Loan Agreement and all other
Loan Documents.
2. Waiver Fee. In consideration of this Agreement, Borrower shall
pay to Coast on the date hereof an waiver fee of $10,000. This waiver fee shall
be deemed fully earned upon execution of this Agreement and shall be in addition
to all other fees and charges payable by Borrower to Coast.
3. Reaffirmation. Except as modified by the terms herein, the Loan
Agreement and the other Loan Documents remain in full force and effect. If there
is any conflict between the terms and provisions of this Agreement and the terms
and provisions of the Loan Agreement or documents related thereto, the terms and
provisions of this Agreement shall govern.
4. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. This Agreement may be
executed by facsimile signatures.
5. Governing Law. This Agreement shall be governed by the laws of
the State of California.
6. Attorneys' Fees; Costs; Jury Trial Waiver. Borrower agrees to
pay, on demand, all attorneys' fees and costs incurred in connection with the
negotiation, documentation and execution of this Agreement. If any legal action
or proceeding shall be commenced at any time by any party to this Agreement in
connection with its interpretation or enforcement, the prevailing party or
parties in such action or proceeding shall be entitled to reimbursement of its
reasonable attorneys' fees and costs in connection therewith, in addition to all
other relief to which the prevailing party or parties may be entitled. Each of
the parties hereto waives its right to a jury trial in any such action or
proceeding.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
COAST BUSINESS CREDIT, a division of
Southern Pacific Bank
By:
---------------------------------
Its:
--------------------------------
MEDIA OUTSOURCING, INC., formerly known
as Direct Sales International, Inc.
By:
---------------------------------
Its:
--------------------------------
[Signatures continue on next page]
Each of the undersigned Guarantors hereby acknowledges and consents
to the foregoing Agreement and confirms and agrees that its Guaranty executed in
favor of Coast shall remain in full force and effect in accordance with its
terms.
SYMPOSIUM CORPORATION
By:
Its:
MEDIA OUTSOURCING, LLC
By:_________________________________
Its:_________________________________
DSI COMMUNICATIONS, LLC
By:_________________________________
Its:_________________________________
NATIONAL READERS SERVICE, INC.
By:________________________________
Its:________________________________
-----------------------------------
Xxxxxx Xxxxxxx
