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EXHIBIT 10.23.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT is made and entered into as of
this 14th day of April, 1997, by and between CATALINA MARKETING CORPORATION, a
Delaware corporation (together with its successors and permitted assigns,
"Borrower"), the Lenders (as defined in the Agreement), and SUNTRUST BANK, TAMPA
BAY, a Florida banking corporation, as agent for the Lenders (together with any
successor agent, the "Agent").
BACKGROUND
Borrower, Agent and Lenders executed a credit agreement dated as of
January 15, 1996 (as amended, supplemented, restated, replaced, or otherwise
modified from time to time, the "Agreement"). Pursuant to the provisions of the
Agreement, the Lenders established a revolving line of credit facility in the
maximum aggregate principal amount of $30,000,000.00 in favor of Borrower (the
"Revolving Credit Facility")
Borrower has now requested Agent and Lenders to increase the Revolving
Credit Facility to the maximum principal amount of $40,000,000.00 and to extend
the maturity thereof. Agent and Lenders have agreed to the request of Borrower
on the terms and conditions of this First Amendment.
NOW, THEREFORE, in consideration of the foregoing and the promises
contained herein, the parties agree as follows:
1. RECITALS. All of the above recitals are true and correct in
every respect and are incorporated herein and made a part hereof.
2. DEFINED TERMS. Any capitalized terms used but not defined
herein shall have the meanings set forth in the Agreement.
3. REVOLVING CREDIT FACILITY.
(a) The parties agree that the amount of the Revolving Credit
Commitment of one of the Lenders shall be increased, as evidenced by the
Revolving Credit Commitments of the Lenders set forth on the signature pages
hereto. The parties further agree that the Revolving Credit Termination Date
shall be extended for an additional year.
(b) Accordingly, the definition of "Revolving Credit Commitment"
contained in Subsection 1.1 of the Agreement is hereby amended to read as
follows:
"Revolving Credit Commitment" means the amount set forth with respect
to a Lender on the signature pages
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of this Agreement or any amendment thereto, or, if there has been a
subsequent full or partial assignment of a Revolving Credit Commitment
pursuant to the provisions of Subsection 10.17 hereof, as may be
reflected on the records of Agent with respect to such assignment based
on the respective Assignment and Acceptance Agreement.
(c) The definition of "Revolving Credit Termination Date" contained in
Subsection 1.1 of the Agreement is hereby amended by replacing the date "August
31, 1997" with the date "August 31, 1998."
4. NEW REVOLVING CREDIT NOTE.
(a) The increase in the Revolving Credit Commitment of the
Lender shall be evidenced by a renewal promissory note of Borrower to the Lender
in the principal amount equal to such Lender's Revolving Credit Commitment. Such
note shall be deemed a "Revolving Credit Note" and shall be deemed issued
pursuant to and subject to the terms of the Agreement, as amended hereby.
5. FINANCIAL COVENANT AMENDMENT.
(a) The financial covenant governing Consolidated Senior Debt
to Consolidated Cash Flow at Subsection 5.15(b) of the Agreement is hereby
replaced with the following:
A ratio of Consolidated Senior Debt to the difference of Consolidated
EBITDA and Consolidated Capital Expenditures which is less than or
equal to 2.0 to 1.0 at the end of each fiscal quarter, with
Consolidated Senior Debt calculated as of such quarter end and
Consolidated EBITDA and Consolidated Capital Expenditures calculated
for the four fiscal quarters then ending.
(b) The definition of "Consolidated EBITDA" is hereby added in
alphabetical order to the definitions contained in Subsection 1.1 of the
Agreement as follows:
"Consolidated EBITDA" means net income or loss of Borrower and its
Subsidiaries plus depreciation expense, amortization expense, interest
expense, income taxes, and other non-cash charges, minus extraordinary
income and gains and non-cash income, if any, and plus extraordinary
losses, if any, all calculated on a consolidated basis and in
accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis.
(c) The definition of "Consolidated Capital Expenditures," is
hereby added in alphabetical order to the
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definitions contained in Subsection 1.1 of the Agreement as follows:
"Consolidated Capital Expenditures" means capital expenditures of
Borrower and its Subsidiaries, calculated on a consolidated basis and
in accordance with Generally Accepted Accounting Principles applied on
a Consistent Basis.
6. REQUIRED LENDERS. The parties agree that the Required Lender
percentage under the Agreement shall increase from 67% to 76%, and accordingly,
the definition of "Required Lenders" continued in Subsection 1.1 of the
Agreement is amended by replacing each reference to "67%" with "76%."
7. EXPENSES. Without limiting the provisions of Subsection 10.2 of the
Agreement, Borrower covenants and agrees to pay all costs and expenses of Agent
and Lenders in connection with the closing of the transaction evidenced hereby,
including, but not limited to, Agent's or Lender's attorneys' fees, recording or
filing costs or expenses, intangible taxes, documentary stamps, surtax and other
revenue fees, and similar items.
8. LOAN AGREEMENT, RATIFICATION, NO NOVATION. Each of the new
Revolving Credit Note and this Amendment shall be deemed to be a "Loan Document"
for the purposes of the Agreement and hereof. Except as expressly modified or
supplemented hereby, the Loan Documents and all agreements, instruments, and
documents executed or delivered pursuant thereto have remained and shall remain
at all times in full force and effect in accordance with their respective terms,
and have not been novated by the provisions of this Amendment.
9. REPRESENTATIONS AND WARRANTIES. To induce Agent and Lenders to enter
into this Amendment and to perform the transactions described herein, Borrower
hereby makes the representations and warranties contained in Section 3 of the
Agreement (other than Subsection 3.4, which is updated herein), on and as of the
date of this Amendment and with respect to the new Loan Documents as well, and
represents and warrants to Agent and Lenders that (a) Borrower is in compliance
with all terms and conditions of the Agreement, and no Event of Default or event
which, with the giving of notice of the passage of time, would constitute an
Event of Default, has occurred and is continuing, (b) the financial statements
and other information most recently provided to Agent and Lenders are correct,
complete, and fairly present the financial condition of Borrower as at the date
thereof and fairly present the results of the operations of Borrower for the
period covered thereby, and that (c) there has been no material adverse change
in the business, properties, or condition, financial or otherwise, of Borrower
since the date of such financial statements or other information.
10. NO WAIVER OF DEFAULT. The execution of this Amendment
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and the new Loan Documents shall not constitute a waiver of any default or Event
of Default in the Agreement or any other Loan Document existing on the date
hereof, nor shall it eliminate any right which Agent or Lenders may otherwise
have to accelerate the indebtedness subject to the Agreement or exercise any
other remedies by virtue of any default or Event of Default.
11. ESTOPPEL AND RELEASE. Borrower hereby acknowledges and agrees that,
as of the date hereof, there exists no right of offset, defense, counterclaim,
claim, or objection in favor of such party as against Agent and the Lenders with
respect to the Revolving Credit Facility, or any aspect of the transactions
contemplated thereby, or alternatively, that any such right of offset, defense,
counterclaim, claim, or objection is hereby expressly waived. In connection with
the foregoing, Borrower hereby releases and discharges Agent and the Lenders,
their subsidiaries, affiliates, directors, officers, employees, attorneys,
agents, successors, and assigns from any and all rights, claims, demands,
actions, causes of action, suits, proceedings, agreements, contracts, judgments,
damages, debts, duties, liabilities, or obligations, of any kind or character,
including without limitation such claims and defenses as fraud, mistake, duress,
and usury, whether in law or in equity, known or unknown, xxxxxx or inchoate,
which it has had, now has, or hereafter may have, arising under or in any manner
relating to, whether directly or indirectly, the Revolving Credit Facility, or
any aspect of the transactions contemplated thereby from the beginning of time
until the date hereof.
12. COMPLETE AGREEMENT; NO OTHER CONSIDERATION. This Amendment and the
other new Loan Documents contain the final, complete, and exclusive expression
of the understanding of the parties hereto with respect to the specific matters
contained herein, and they supersede any prior negotiations or any prior or
contemporaneous agreement or representation, oral or written, express or
implied, by or between the parties related to the specific subject matter
hereof. Without limiting the generality of the foregoing, there does not exist
any consideration or inducement other than as stated herein for the execution,
delivery, and performance by Borrower of this Amendment and the other new Loan
Documents.
13. CONSULTATION WITH COUNSEL. Borrower has had the opportunity to
consult with counsel of its own choosing, and have discussed with such counsel
the provisions of this Amendment and the other new Loan Documents or have
freely and voluntarily elected not to discuss such provisions with counsel.
14. COOPERATION, FURTHER ASSURANCES. Borrower agrees to cooperate with
Agent and the Lenders so that the interests of Agent and the Lenders are
protected and the intent of the Loan Documents and this Amendment can be
effectuated. Borrower agrees to execute whatever further documents and to
provide whatever further assurances Agent or the Lenders may reasonably request
or
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deem necessary to effectuate the terms of the Revolving Credit Facility and
this Amendment.
15. COUNTERPARTS; FACSIMILE SIGNATURES. This Amendment may be signed in
original counterparts and by facsimile transmission of signed counterparts, each
of which shall be deemed an original, in any number, no one of which need
contain all of the signatures of the parties, and as many as such counterparts
as shall together contain all of the signatures of the parties shall be deemed
to constitute one and the same instrument. This Amendment shall become effective
upon the receipt by Agent of original signed counterparts of this Amendment from
each of the parties or telecopy confirmation of the signing of such counterparts
by each of the parties hereto.
16. HEADINGS. The headings preceding the text of the paragraphs of this
Amendment have been inserted solely for convenience of reference and shall
neither constitute a part of this Amendment nor affect its meaning,
interpretation, or effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
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SIGNATURE PAGE
First Amendment to Credit Agreement Among Catalina Marketing Corporation,
SunTrust Bank, Tampa Bay, as Agent, and the Lenders party thereto.
CATALINA MARKETING CORPORATION,
a Delaware corporation
By:____________________________
Xxxxx Xxxxxxxxx
Treasurer
(SEAL)
Address:
11300 0xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx
Fax No. (000) 000-0000
Confirming Tel. No. (000) 000-0000
With a copy to:
PAUL, HASTINGS, XXXXXXXX & XXXXX
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No. (000) 000-0000
Confirming Tel. No. (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
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SIGNATURE PAGE
First Amendment to Credit Agreement Among Catalina Marketing
Corporation, SunTrust Bank, Tampa Bay, as Agent, and the Lenders party thereto.
SUNTRUST BANK, TAMPA BAY, a
Florida banking corporation,
individually and as Agent
By:
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Xxxxx X. Xxx
Vice President
Address and Lending Office:
0000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Corporate Banking Division
Fax No. (000) 000-0000
Confirming Tel. No. (000) 000-0000
Revolving Credit Commitment: $30,000,000.00
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SIGNATURE PAGE
First Amendment to Credit Agreement Among Catalina Marketing Corporation,
SunTrust Bank, Tampa Bay, as Agent, and the Lenders party thereto.
FLEET NATIONAL BANK, SUCCESSOR BY MERGER
TO FLEET BANK OF MASSACHUSETTS, N.A.,
Lender
By:
------------------------------
Name:
Title:
Address and Lending Office:
Mail Code MAOFO320
00 Xxxxx Xxxxxx, 0 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax No. (000) 000-0000
Confirming Tel. No. (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
Revolving Credit Commitment: $10,000,000.00