Exhibit 10.1
THIRD AMENDMENT TO LOAN AND
SECURITY AGREEMENT
THIS THIRD AMENDMENT TO LOAN AND
SECURITY AGREEMENT (“Third Amendment”) is made as of
this 5th day of October, 2009, by and among RBS BUSINESS CAPITAL, a
division of RBS Asset Finance, Inc., a New York corporation
(“RBS”), with an office at 71 South Wacker Drive, Suite
2800, Chicago, Illinois 60606, individually as a Lender and as
Agent (“Agent”) for itself and any other financial
institution which is or becomes a party to the Loan Agreement
referred to below (each such financial institution, including RBS,
is referred to hereinafter individually as a “Lender”
and collectively as the “Lenders”), the LENDERS and
REWARDS NETWORK INC., a Delaware corporation (“RNI”),
with its chief executive office and principal place of business at
Two North Riverside Plaza, Suite 950, Chicago, Illinois 60606 and
each domestic subsidiary of RNI signatory hereto (RNI and each such
subsidiary are sometimes hereinafter referred to individually as a
“Borrower” and collectively as
“Borrowers”).
WHEREAS, Agent, Lenders and
Borrowers entered into a certain Loan and Security Agreement dated
November 6, 2007, by and among Borrowers, Lenders and Agent as
amended by a certain First Amendment to Loan and Security Agreement
dated August 11, 2008 by and among Agent, Lenders and
Borrowers and by a certain Second Amendment to Loan and Security
Agreement dated June 1, 2009 by and among Agent, Lenders and
Borrowers (said Loan and Security Agreement, as amended from time
to time, is hereinafter referred to as the “Loan
Agreement”); and
WHEREAS, Borrowers, Agent and
Lenders desire to amend certain provisions of the Loan Agreement
pursuant to the terms hereof.
NOW, THEREFORE, in consideration of
the premises, the mutual covenants and agreements herein contained,
and any extension of credit heretofore, now or hereafter made by
Agent and Lenders to Borrowers, the parties hereto agree as
follows:
1. Definitions . All
capitalized terms used herein without definition shall have the
meanings contained in the Loan Agreement.
2. Additional Definition .
The following definition of “Third Amendment” is hereby
inserted into Appendix A to the Loan Agreement:
“ Third Amendment
– that certain Third Amendment to Loan and Security Agreement
dated as of October 5, 2009 by and among Borrowers, Agent and
Lenders.”
3. Financial Covenants . The
definition of “Excluded Distributions” contained in
Exhibit 8.3 to the Loan Agreement is hereby deleted and the
following definition is inserted in its stead:
“ Excluded
Distributions – any Distribution made for open market
repurchases of RNI’s common stock or to pay dividends on
RNI’s common stock so long as after giving effect to any such
Distribution (x) the outstanding principal balance of the
Revolving Credit Loans is $0, (y) the Fixed Charge Coverage
Ratio for the most recently ended twelve month period, computed
without taking into account the Distribution in question and all
other Excluded Distributions, equals or exceeds 1.75 to 1 and
(z) the aggregate amount of Borrowers’ unrestricted cash
and Cash Equivalents equals or exceeds $5,000,000. As used herein,
“Cash Equivalents” means (a) marketable
obligations issued or unconditionally guaranteed by, and backed by
the full faith and credit of, the United States government,
maturing within 12 months of the date of acquisition;
(b) certificates of deposit, time deposits and bankers’
acceptances maturing within 12 months of the date of acquisition,
and overnight bank deposits, in each case which are issued by a
commercial bank organized under the laws of the United States or
any state or district thereof, rated A-1 (or better) by S&P or
P-1 (or better) by Moody’s at the time of acquisition, and
(unless issued by a Lender) not subject to offset rights;
(c) repurcha
