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Exhibit
10.1
WAIVER TO CREDIT
AGREEMENT
THIS WAIVER TO CREDIT
AGREEMENT (this “ Waiver Agreement ”) is
made and entered into as of April 25, 2005, by and among REWARDS
NETWORK INC. , a Delaware corporation (the “
Borrower ”), BANK OF AMERICA, N.A. , a national
banking association organized and existing under the laws of the
United States (“ Bank of America ”), in its
capacity as administrative agent for the Lenders (as defined in the
Credit Agreement (as defined below)) (in such capacity, the “
Agent ”) and as the L/C Issuer, each of the Lenders
signatory hereto, and each of the Guarantors (as defined in the
Credit Agreement) signatory hereto.
W I T N E S S E T H
:
WHEREAS, Agent, the
lenders party thereto (collectively, the “ Lenders
” and individually each a “ Lender ”) and
Borrower have entered into that certain Credit Agreement dated as
of November 3, 2004 (as from time to time amended, restated,
amended and restated, extended, supplemented, modified or replaced,
the “ Credit Agreement ”; capitalized terms used
herein but not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement), pursuant to which
the Lenders have agreed to make and have made available to Borrower
a revolving credit facility in an aggregate principal amount of
$50,000,000; and
WHEREAS, each of the
Guarantors has entered into a Guaranty pursuant to which it has
guaranteed the payment and performance of the obligations of
Borrower under the Credit Agreement and the other Loan Documents;
and
WHEREAS, Borrower has
requested, among other things, that Defaults or Events of Default
related to certain covenants under the Credit Agreement be waived,
each in the manner set forth herein, and Agent and the Lenders
party hereto, subject to the terms and conditions contained herein,
are willing to effect such waiver on the terms and conditions
contained in this Waiver Agreement;
NOW, THEREFORE, in
consideration of the premises and further valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Waiver . Agent and
each Lender hereby waive any and all Defaults or Events of Default
pursuant to Section 8.01(b) of the Credit Agreement having
occurred or to occur as a result of a breach of Sections
6.12(a) and 6.12(b) of the Credit Agreement for the
quarterly accounting period of Borrower ended March 31, 2005. The
waiver set forth in this Section 1 is limited to the extent
specifically set forth above and shall in no way serve to waive
compliance with Section 6.12(a) or Section 6.12(b) of
the Credit Agreement for any other accounting period or to waive
any other terms, covenants or provisions of the Credit Agreement or
any other Loan Document, or any obligations of Borrower, other than
as expressly set forth above. Furthermore, the waiver set forth in
this Section 1 shall in no way serve as a waiver of a
Default for purposes of, and such waiver shall not constitute
satisfaction of, Section 4.02(b) of the Credit Agreement
with respect to any Credit Extension or Request for Credit
Extension by Borrower.
2. Conditions to
Effectiveness . The effectiveness of this Waiver Agreement and
the waivers provided herein are subject to the satisfaction of the
following conditions precedent:
(a) Agent shall have received
each of the following documents or instruments in form and
substance reasonably acceptable to the Agent:
(i) four (4) original
counterparts of this Waiver Agreement, duly executed by Borrower,
each Guarantor, Agent and the Required Lenders; and
(ii) such other documents,
instruments, opinions, certifications, undertakings, further
assurances and other matters as Agent shall reasonably request;
and
(b) all fees and expenses
payable to Agent and the Lenders (including the fees and expenses
of counsel to Agent) estimated to date shall have been paid in full
(without prejudice to final settling of accounts for such fees and
expenses).
Upon satisfaction of the conditions set
forth in this Section 2 , this Waiver Agreement shall be
effective as of the date hereof.
3. Consent of the
Guarantors . Each Guarantor hereby consents, acknowledges and
agrees to the waivers set forth herein and hereby confirms and
ratifies in all respects the Guaranty to which such Guarantor is a
party (including without limitation the continuation of such
Guarantor’s payment and performance obligations thereunder
upon and after the effectiveness of this Waiver Agreement and the
waivers contemplated hereby) and the enforceability of such
Guaranty against such Guarantor in accordance with its
terms.
4. Representations and
Warranties . In order to induce Agent and the Lenders to enter
into this Waiver Agreement, the Borrower represents and warrants to
Agent and the Lenders as follows:
(a) The representations and
warranties of Borrower and each other Loan Party contained in
Article V or any other Loan Document shall be true and
correct on and as of the date hereof, except to the extent that
such representations and warranties specifically refer to an
earlier date, in which case they are true and correct in all
material respects as of such earlier date, and except that for
purposes of this Section 4(a) , the representations and
warranties contained in subsections (a) and (b) of
Section 5.05 of the Credit Agreement shall be deemed to
refer to the most recent statements furnished pursuant to clauses
(a) and (b) , respectively, of Section 6.01 of
the Credi
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