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 rep
